Craft brewers are a clever bunch. Just a cursory glance down the beer aisle at a nearby market proves the point. Product with names like Irish I Was A Little Bit Taller (Noble Ale Works), Smooth Hoperator (Stoudts Brewing Co.) and Baby Got Bock (Horny Goat Brewery) are just the tip of the witty iceberg.
Yet, while puns and cultural references may all be in the spirit of fun, they can also spell trouble if not chosen carefully. Case in point, Guns ‘N’ Rosé — a light and fruity ale by CANarchy Craft Brewery (formerly Oskar Blues Brewery) with a tongue-in-cheek reference to ’80s rock band Guns N’ Roses. It is clever and most consumers would understand this moniker to be merely wordplay, and not an endorsement, license or other affiliation with Axl Rose, Slash and company. But the band wasn’t amused, and its attorneys took action against CANarchy in the form of a federal complaint, filed this May, alleging trademark infringement and dilution.
The litigation begs the question: When does clever cross the line and become a violation of intellectual property law?
The short answer is that any use of a name may be problematic when it creates confusion on the part of consumers or muddles in some way the source of a given product. But not to worry, brewers can continue to operate with a sense of humor, though they should do so by first taking appropriate precautions.
Does your beer’s name cause confusion?
Truth be told, widespread reference to trademarked or copyrighted names in beer is rather pervasive.
Because — by and large — many technical IP violations go unnoticed by trademark and copyright holders. Alternatively, sometimes a trademark or copyright violation is so immaterial that it’s not worth fighting.
That being said, just because an infringing name may not be deemed significant enough to warrant a cease-and-desist letter doesn’t mean that a violation hasn’t occurred. And while the owner of IP may overlook a one-off or limited run brew on tap with a name that’s too close for comfort, when a beer becomes successful or, at the very least, well publicized, problems may well ensue.
Example: Breaking Bud
Take, for example, Breaking Bud by Knee Deep Brewing Co. The Auburn, Calif., brewer named its India Pale Ale with a reference to the hit television show — and pop culture phenomenon — Breaking Bad, drawing inevitable smirks from consumers that resulted in meaningful sales.
Trouble began for Knee Deep back in the spring of 2018 as the beer’s popularity grew, leading to unwanted scrutiny — and a lawsuit — from Sony Pictures Television (one of the show’s production companies). Suddenly, the brewer found itself staring down the barrel of litigation with questionable IP (a name causing confusion) at the core of its business.
The lesson learned: the downside to a clever beer name is that when it succeeds, a company’s branding becomes vulnerable to challenge. Too often, brewers like Knee Deep and CANarchy place themselves in legal predicaments by failing to obtain necessary IP rights prior to launch.
The right approach
The complaint filed on behalf of Guns N’ Roses includes the names of beers that lawfully reference band names. But the key distinction is that those uses are licensed.
Exhibit A: Metallica’s Enter Night Pilsner collaboration with Stone Brewing. This is a product that demonstrates the cache band names have in the craft brew space. In fact, the vintage and sensibility of Metallica and Guns N’ Roses are rather comparable. For a time, they were the two biggest touring bands of the ’80s. Yet Metallica’s alliance with Stone Brewery is precisely the type of legal relationship that CANarchy cannot explain away.
Like Stone Brewing accomplished with Metallica, CANarchy should have sought an understanding with Guns N’ Roses at the get go. It did not, seemingly taking for granted that it could seek forgiveness from the band after the fact.
While maybe not a far-fetched strategy — the craft beer industry is known to be rather collegial when it comes to trademark disputes, focusing on resolutions outside the courtroom setting — the makers of Guns ‘N’ Rosé are now playing defense as Guns N’ Roses takes a swipe at these norms by pursuing its lawsuit.
When a clever name is on tap, brewers must keep in mind the possibility of trademark and copyright infringement, appreciate the difference between the two and understand that trademark infringement is much more likely to result in legal headaches.
The main function of a trademark is to act as a source identifier to consumers so that they know where any given product comes from. For their part, copyrights are rewards to creators of work, with copyright ownership serving as an incentive for artists and authors to keep creating.
The distinction between the methods of IP protection is important given that it is much easier to create confusion as to the source of a product than it is to disrupt the benefits enjoyed by a copyright holder, and — as a rule — such confusion will be viewed as harmful. As a consequence, an owner of a trademark is less likely to turn a blind eye to a clever name that oversteps its legal boundaries.
To place this in context, the name Guns N’ Roses is a trademark, while the band’s songs, recordings and lyrics are protected by copyright. And because the trademarked name has an identifiable meaning in the minds of consumers — Guns N’ Roses immediately conjures up the band — an ale like Guns ‘N’ Rosé that plays off of the GNR moniker will surely be associated with the group, create unwanted confusion as to the beer’s source and expose the infringing party to damages. That’s exactly what has happened to CANarchy.
Long story short: Continue to be clever, brewers. But at the same time, be sure to keep an eye out for potential IP infringement, especially trademarks. The failure to do so can evoke that Guns N’ Roses classic, “Welcome to the Courtroom.”
Taylor C. Foss is an intellectual property litigator, alcohol attorney, craft brew enthusiast and senior associate at Michelman & Robinson, LLP, a national law firm with offices in Los Angeles, Orange County (Calif.), San Francisco, Chicago, and New York City.