Wednesday, March 20, 2013

Craft Brewing: Cease and Desist

Now, before you get your hops in a bunch, I'm not suggesting the craft brewing industry stop what it's doing and discontinue its rapid growth.  Quite the contrary.  This little post aims to help (even a wee bit) the craft brewing industry by highlighting a small, yet worrisome problem: Cease and desist letters.
With this boom in craft beer comes the increasingly complicated task of each brewery naming a beer, creating artwork, and the business of branding.  Problem is, craft breweries are small and, thankfully, quite numerous. Their economic footprint rarely goes beyond a county, and as such attention to the aforementioned tasks is a bit lacking. That is, a small brewery in South Carolina has little means or motivation to research if a certain name (say, "Hopolicious IPA") is being used by another brewery across the country in Oregon. If a trademark was filed by the Oregon business, the its infringement can cause quite a stir.  To many people, it is difficult to justify trademark infringement against a small company thousands of miles away that is not in the same market, and does not plan to be.

But as a business, the Oregon brewery has a concern, and every right to defend its brand.  If it chooses not to pursue an infringement grievance, then it can be shown later on that it does not really care about its brand.  With that, another brewery years later (perhaps one in Oregon) can claim naming rights that this brewery might already have. In other words, protect the brand now to stave off future challenges--which may come from much larger, macro breweries.  Protecting a trademark is necessary, and understandable.

Unfortunately, the methods used for protection can incur damages. For one, a cease and desist letter from a lawyer is impersonal, which is anathema to craft brewing. For the most part, brewers are not business managers. If they encounter a problem, they like to handle it personally. Getting attorneys involved is seen as steely and cold.  It seems aggressive, and brewers do not react well to these perceptions (who would?).  In the age of social media the reaction can be swift, intense and ugly.

Still, legal counsel may be needed…just not right off the bat. For one thing, legal counsel is expensive. It can be slow and confusing. It takes control of the situation out of the hands of the parties involved. Probably the most unnerving is the fact that adjudication, if it comes down to that, is one-sided and the decision of one person: the judge. Who knows how a case will turn out? 

But options exist between not challenging infringement (doing nothing) and going to court. Personal contact is recommended first.  This can be easy, or rather challenging. If the latter, then many go directly to "lawyering up", but they don't have to. Mediation, facilitation and conferencing are options that are becoming more readily available to craft brewers.  These methods are cheaper than legal/court fees, quicker and retain control of the situation to the parties.  It's a good idea to at least give them a chance. Legal counsel is not refused or negated by these methods, so that is still an option if needed.

The hope is that name, branding, trademark dispute can be settled amicably, efficiently and effectively, while maintaining and strengthening relationships and perhaps create new ones.  There is no backlash to these approaches, whereas a cease and desist letter can (and has) create a firestorm or two.