Another week, another trademark battle in the craft brewing industry. West Sixth Brewing, a craft brewer in Lexington, Ky., is spreading the word on its blog that the parent company of Magic Hat is allegedly suing the one-year-old brewery for infringing on its No.9 brand trademark.
West Sixth’s site is temporarily down as of the writing of this post, but you can check out the full blog post from West Sixth here. The company has also started a petition to try and help its cause.
Here is an excerpt of the blog post in question:
They’re claiming that we intentionally copied their logo, and that has caused them “irreparable harm”, enough that they’re asking for not only damages but also all our profits up until this point (little do they know that well, as a startup company, there wasn’t any, oops!).
West Sixth seemed confident that the claims over infringement had no merit, based on several factors, including that the logo had been professionally designed, that a 6 is not a 9, and that their name is prominent in their logo. (For a full rundown of West Sixth’s arguments, be sure to read the entire blog.)
But visual trademark issues within the same category can be tricky. For those looking for a little trademark/copyright advice, we turn your attention back to a feature we produced from the Craft Brewers Conference. Some passages that come to mind in relation to this specific story:
You also have to consider the meaning of the design. For example, if the image is a black cat, you have to search for “black cat” brands or trademarks, not just the image, as there could be a potential issue there.
Not all of this trademark talk is about making sure you are safe, it’s also about standing your ground. Do you see other brands infringing on your trademarks and copyright? Traphagen emphasized not just preventing exact duplicates, but also designs or slogans that might confuse customers into associating it with your brand. Over time, if other brands continue to crowd your trademark, your brand could erode, and you could potentially lose your enforcement power – unlikely, but possible.
“In general, a pattern of non-enforcement against infringers may eventually be considered an abandonment of trademark or a weakening,” Traphagen said. “Not responding to just a couple problems is not sufficient to lose rights. The law recognizes why every claim isn’t attacked. But if you don’t enforce at a certain level, your brand may be diminished because a number of others will have encroached on it.”
Trade dress can also be protected by copyright. Unlike trademark protection, the test is if observers would believe the design they are looking at is based on another design. Here is a place where a trademark claim might fail, but a copyright claim could succeed. Traphagen gave the example of the clock design on the iPhone, which was a copyrighted design of the Swiss Railway Network. Apple then had to negotiate a license to use it.
1. Get assurances that the work the company is doing is original and has not been copied, and if it has been copied, that they have obtained permission. If the company sends you something that infringes on someone else’s copyright, you will be the one liable.
Magic Hat is owned by Cerveceria Costa Rica, a subsidiary of Florida Ice and Farm Co., SA. We emailed Magic Hat for its take and will update the story when we receive a response.