Cans of beer brewed by Grand Rapids-based Brewery Vivant. Photo via fb.com
The co-owner of a Grand Rapids brewery recently took to the Internet to share his account of a trademark dispute with an out-of-state brewery.
The ordeal stems from a disagreement between Brewery Vivant, which produces its Farm Hand beer, and Ardmore, Pa.-based Tired Hands Brewery, which produces a beer named FarmHands.
A cease and desist letter sent by Brewery Vivant to Tired Hands was recently picked up by news outlets, prompting reactions from the two breweries.
Brewery Vivant’s Jason Spaulding explains the situation in a post on his website.
“We are a small husband-&-wife-run brewery in Grand Rapids, Michigan,” Spaulding writes. “Our best-selling flagship beer is called ‘Farm Hand.’ We have spent a lot of the company’s resources developing this brand over the last three years. Tired Hands Brewery out of PA opened last year and has a beer they call ‘FarmHands.’ We first realized this potential conflict earlier this year and reached out to them in an email.
"In the email, I made them aware that we already had a brand in the market that we distribute with a very similar name," adds Spaulding. "I let them know that as long as they kept their beer as an in-house pub beer, I had no problem with the similar name. However, if they ever chose to distribute this beer, we would have issue with the name. I congratulated them on their opening and asked them to get back with me. I got zero response from this email.”
Cease and desist
In March, at the Craft Brewer’s Conference in Washington D.C., both beers were on tap at a bar, where Spaulding said there was confusion by “bartenders and patrons alike.”
“This demonstrates why a beer cannot have a name that only differs by one letter,” Spaulding writes. “It became obvious to us that we would have to take further measures to protect our brand, as confusion in the marketplace had already begun. Being that we have a registered trademark for this brand, we are obligated to pursue a dispute or risk losing all rights to the name or brand forever. Since the other brewery was not interested in talking about it, we took the next step to get a response, thus the letter.”
“Marketplace confusion sucks”
Tired Hands’ owner Jean Broillet says in a post on his website that the Pennsylvania brewery was threatened with a lawsuit worth “millions of dollars,” and it spent about $5,000 fighting the dispute, before ultimately changing the name of the beer.
“As educated beer consumers, you would not have any trouble distinguishing one beer from another (not to mention the fact that none of these beers are available in the same geographic location),” Broillet writes. “Marketplace confusion sucks, but we have never had that problem in our industry, because what we sell is necessarily unique to the producer. We’re not making widgets here, we are crafting an organic product that has inherent value beyond ‘branding.’ We will be retiring FarmHands on September 26th, 2013 to avoid a lawsuit from Vivant.”
Enforcing its trademark
“This is not true. A ‘cease and desist’ letter basically says that we feel we have a superior claim to use the name in the marketplace, given that we have been open longer and have been using it since day one," Spaulding writes. "It also states that we desire for them to recognize this claim and stop using it. We did not want to make them have to change it over night, as we know how much goes into selecting a beer name. So, we gave them 90 days to come up with a new one. In our beer-naming process at Vivant, we begin with a Google search to make sure the name we want to use isn't already in use by a distributing brewery. This usually gets us 90% there. A search like this by Tired Hands would have prevented this issue. We also are not oblivious to the fact that many other beers, ours not withstanding, have similar names. However, registry and trademark, style similarity and degree of overlap must be considered by all breweries faced with these choices.
"We are not trying to put Tired Hands out of business," adds Spaulding. "We just want to end the existing confusion and potential future conflicts in the marketplace between the brand names as both breweries grow. This will cost them nothing to change, because we caught it early. The beer will be the same, (in fact, their description of the beer sounds delicious, and I would like to try it), their customers will still buy it and enjoy it, and it will hopefully not affect their business one bit. I wish Tired Hands well. It sounds like they have a wonderful neighborhood brewery with lots of passionate customers. I know this to be true, because I think I have heard from about every single one of them by now, and they have had many colorful suggestions for me.”
This isn’t the first trademark dispute between breweries in the past year.
Earlier this summer, the large Vermont microbrewery Magic Hat Brewing took legal action against West Sixth Brewing of Kentucky, because of a suspicious 6.
In January, craft giant Sierra Nevada forced Brooklyn’s Narwhal Brewery to change its name to Finback Brewery, because of the California brewery’s Narwhal Imperial Stout.
“As an industry, we are heading down a gnarled and paranoiac path that will only serve to isolate our customers, by truncating the creativity of fellow beer producers — effectively losing sight of what made this industry so great when I entered into it nearly a decade ago . . . collaboration, camaraderie and a sense of infinite exploration,” Broillet writes.