Understand Trademarks to Protect Your Beverage Alcohol Brand

One of the most important assets that a successful beverage alcohol producer has is their brand. A clear, readily identifiable brand is critical for bringing consumers in and making sure they will become repeat purchasers. But as the number of producers has exploded over the last few decades, the likelihood of consumer confusion around a brand has also ratcheted up.

Indeed, the news these days is full of stories of costly and drawn out litigation between alcohol producers who have allegedly stepped on each other’s toes. While it may be far from the minds of a producer more focused on making the best beer, wine or spirits they can, this potential for brand conflict does mean that everyone should pay attention to the all-important world of trademarks.

What is a trademark and why does it matter?

A trademark is the characteristics or features that an average consumer uses to identify a given product or business. It can be a word, an image, a sound, a smell, anything that makes something uniquely recognizable and distinctive from the competition. What makes Nike different from Adidas? Yes, devotees may note differences in quality or fit, but mostly it’s a swoosh versus three slanted lines.

This was borne out earlier this year when Keystone Light was found to have infringed on the trademark of Stone Brewing as an average consumer could be readily confused by a can with “STONE” printed in large letters alongside a diminutive “key.”

Distinguishing your brand from your competitors’ is important, but trademarks can also help to establish your broader brand identity among consumers. For instance, the name “Rolex” evokes a much different impression in the market than the name “Swatch,” and different consumers will choose one or the other based on that established image. While not exactly about preventing competition, this was the reason the estate of Prince sued to prevent the use of “Purple Rain” on a bottle of wine—to protect the singer’s image as a teetotaler.

Creating a unique identity is especially important in the beverage alcohol industry, where consumers are often faced with whole walls of different products to choose from. If a given consumer can readily spot your brand in a cooler and rely on the name and imagery they see, they will be that much more likely to buy your product than someone else’s.

As such, trademarks can be extremely valuable (anyone can make a tasty cola—only one company can make Coke) and so they are often the subject of fierce safeguarding that can quickly get downright nasty. To avoid future trouble and strife, craft alcohol producers need to take steps right away to ensure that 1) they do not infringe on anyone else’s trademark and 2) ensure that their own trademarks are safe and uninfringed upon.

How do I get a trademark?

The most important thing about a trademark is that it must be related to commerce. That is, a business must be actively (or, perhaps, imminently) using the name, image, etc., to identify something that consumers can go out and buy.

This does mean that a trademark can be created, essentially, all at once. Any distinctive and identifiable mark used in commerce is inherently a trademark and can be protected by the owner from future infringement. Know that there is no requirement to register your trademark or name with the United States Patent & Trademark Office (USPTO).

However, that doesn’t mean that registration is by any means not recommended. Indeed, it brings a variety of benefits, from automatic presumption of first use, national recognition of the mark, and the availability of statutory damages if infringement is found by a court. While a business may rely in the United States on being the first to use a mark in commerce to grant them some protection, it can often be small fry compared to what registration with the USPTO allows (see the “original” Burger King).

But make sure the benefits outweigh the costs. Registration with the USPTO can be costly ($250 per mark) and take over a year to complete. It’s also highly recommended to use an experienced trademark attorney to manage the complex registration process, which brings its own costs. That might mean that a given producer should perhaps focus on big marks—their name and maybe a flagship product or two—rather than register each and every item they sell.

Keep in mind that having a Certificate of Label Approval (COLA) does not have any implications on trademark. It neither means that your product is cleared from infringing on existing marks nor that it is clearly protected against future copycats.

How do I protect against trademark conflicts?

As in so many things, prevention is the best medicine for trademark conflicts, whether you are the infringer or the infringed upon.

When you are developing your brand and when you bring out new products, it can be invaluable to conduct basic market research first and see what names and images have already been used. This doesn’t have to be a full review of the USPTO’s database but can be a simple Google search (though there are industry-specific brand search options, too). If something you want to use pops up, then it might ruin your marketing plan, but it did just save potential years of heartbreak. (Note, though, that trademarks generally apply to a select class or type of product and infringement only happens within that class or type—this is how Apple Records and Apple Computer could coexist. So, if you see your new brewery name is being used by a drycleaner across the country, that should be fine, though, again, it is always best to consult with your attorneys on specifics.)

Similarly, once you have an established trademark, it’s critical to monitor the market for anyone else who might try to use it. Allowing infringement to happen under your nose is one of the easiest ways to lose your rights to a trademark. This can lead some businesses to act a little aggressively in the face of perceived trademark infringement, but that doesn’t mean they are necessarily being nasty as opposed to just protecting their assets. Again, simple Google alerts and reading trade magazines can be invaluable here.

When you do see possible infringement, it might seem like the immediate next step is to sue. However, while it is always a good idea to consult an attorney before engaging, the beverage alcohol industry is replete with stories of businesses finding amicable solutions to trademark disputes. The infringer may not be aware of the existing trademark and a friendly heads up could be all that’s needed. Or you could work out a deal, such as limiting one product to being sold only in their home state.

Having a distinct brand and identity is invaluable in commerce, especially in crowded markets like beverage alcohol. Getting ahead of finding a unique brand and protecting it from infringement is the best way to retain that value.