Do microbrews trademark their various brands?

Oh god Bud Light, take it away..

 

He didn't.

 

If I were Lucas or in a similar situation, I'd allow it -- for a fee.

 

That looks more like a direct take off of the Busch can image to me. Maybe it's just the colors. Which also can be trademarked, IIRC.

 

There are generally three types of trademark rights: those that exist under state law, federal trademark rights, and common law rights. Generally speaking, common law rights arise when you use a mark with the intent that it be a source identifier (ie that it identify a product or service). The major limitation of common law trademark rights is that they are confined to the geographic area where the mark is used. So, a brewery that is still pretty limited in its distribution with a beer named Black Jack probably wouldn't be able to successfully attack a breweries use of the same name across the country.

In order to obtain federal or state rights you have to file an application. In my experience, most state trademark registrations provide very little in terms substantive benefits so most bypass these and go straight for federal. Once you obtain a federal registration you have national rights to the mark; but those rights are subordinate to preexisting common law rights. I typically think of federal rights like a piece of Swiss cheese. Continuing with the black jack example, if a brewery were to come along and register that mark federally, the owners of the registration wouldn't be able to exclude breweries who had established common law rights. So there could be multiple black jacks out there.

 

Ballast point had to change the yellowtail because of yellow tail winery, they got a shit ton of money for it though.

 

^that was overly simplified but I hate typing on my iPhone

 

It's not always possible to trademark a name. Fuller's tried to register ESB or Extra Special Bitter but were refused on the grounds that it was too general an expression.

 

Wow, are you serious? Intellectual property rights existed under English common law? Or are you just using common law as/in a generic/inaccurate way? If not, I learned something new today. I thought intellectual property was 100% codified by statute in the year 2012. . .

 

Trademarks. Is that what people have complained about floating in their beer?

 

I like the fact that Avery and Russian River almost had a name dispute.
They instead turned it into a collaboration beer: http://2beerguys.com/blog/2010/02/09/avery_russian_river/
That's classy.

 

I know in Canada the Amsterdam brewery from Ontario created and trademarked their 416 Urban Wheat (since 416 is a Toronto area code) as well as the area codes for a bunch of other major Canadian cities+Urban Wheat, since they wanted to snatch up the name so that A-B couldn't launch Goose Island Urban Wheat in Canada. Now to me that is a super sketchy thing to do.

 

Not sketchy, just beating them at their own game.

 

FW Abacus comes to mind.

 

No, there are common law trademark rights, and he is not using common law in an inaccurate way. Just because something is codified in statute doesn't mean there can't be common law rights as well.

 

Cool thanks, I truly did learn something today.

Pretty much everything in Nevada or Wisconsin that had an origination in common law, is now codified or abrogated as part of case law precedent or statutory authority, or at least that's my interpretation.

Not to get all chicken or the egg on you, but, how does one determine that common law still exists and is applicable, without a determination by a court or legislature in this day and age? Its one thing for something to have origins in common law, but for current binding authority, doesn't a court or legislature have to make that (more binding) determination?

 

Yep, as LegalBrew87 said, common law trademark rights exist and can be superior to federal trademark rights in some instances (see below). One of the limitations of common law trademark rights though is that they are limited to the geographic area in which the mark is used. So (keeping with the Black Jack example) if a brewery whose distribution was limited to Atlanta called their beer Black Jack (and didn't get a federal registration), that brewer would have a difficult time prohibiting a brewer in Portland, OR from calling their beer Black Jack. Of course, the geographic boundaries of common law trademark rights are probably being blurred in the internet age. The key is to look at the consumer and ask the question: are there common consumers to the two products and is there a likelihood that those consumers would be confused as to where the product originated from? Again, in the internet age, these lines are blurred. In the beer context, with the proliferation of sites like BA and trading, those lines are even more blurred.

Common law rights can trump a federal registration because the United States trademark system is first-to-use system. So common law rights that exist before a federal registration (which grants national rights) will trump the federal rights in the geographic area where the common law rights exist. I always thought of federal rights potentially being a piece of swiss cheese...generally you are granted national rights, but there may be holes in those rights because of common law users who weren't known at the time you filed the registration.