The Magic Hat / West Sixth Trademark Dispute: Settlement

The good news is that Magic Hat and West Sixth breweries agreed on a settlement to their intense, and public, dispute.  A joint press release stated that the parties have come to a mutually agreeable solution to the trademark problem.  Here it is in its entirety

"Official Statement
West Sixth & Magic Hat

The parties have a mutual interest in assuring that consumers perceive their products as distinct.

The parties have mutually resolved the issues addressed in the lawsuit in a manner that eliminates potential confusion about product origin and resolves the lawsuit in a mutually acceptable way.

To the extent West Sixth in any way represented that Magic Hat filed a frivolous lawsuit, that Magic Hat initiated litigation improperly, that Magic Hat was unresponsive in negotiating a resolution, that Cerveceria Costa Rica was itself involved in the dispute or its resolution, that Magic Hat claimed ownership of the numeral 6, that Magic Hat sued West Sixth after West Sixth had already acceded to its demands, that Magic Hat has no Vermont presence, or that Magic Hat sought to recover for or enjoin West Sixth from truthful public statements, such representations are retracted. West Sixth regrets that it in any manner communicated any inaccuracies, and hereby corrects those errors.

Both Magic Hat and West Sixth have agreed that this joint statement will be the last public communication from either side regarding the resolved dispute.

Each wishes the other good fortune and continued success."

So, there it is.  It seems the mediation worked, and the slight change to West Sixth's label was the removal of a compass / star image.  That's it...as far as labeling goes.  But what takes up the bulk of this joint message is public relations mending.  Why is the biggest paragraph essentially an apology from West Sixth about its public comments during the dispute?  After all this time and threats of litigation, what comes out is a simple (relatively) label edit and a long, drawn out "regret". Does this seem odd?

In fact, no, it doesn't. At least not to those in the field of conflict management. To them, they see this paragraph of apology as addressing the main issue for Magic Hat: public image and possibly hurt feelings.  While the label dispute was the main issue, as soon as it hit the social media stream it became a side dish.

They're not alone. Even more recently the international, conglomerate brewer, giant corporation AB-InBev reportedly issued a cease and desist to extremely tiny, ma-and-pop brewery Belleville Brewing in the UK.  Now, Ab-InBev is the type of large corporation that can weather a flame war of public image on the social networks, so they probably aren't worried about this dispute's affect on their image. And as far as image goes, this can help Belleville...assuming it survives the legal costs. This dispute is a bit different from other brewing trademark cases because of the disparity of sizes between the disputants. This is not true with most other cases, where disparity in size may exist, but not to this extreme.

The fact is, most breweries involved in trademark (or other) disputes cannot afford negative press, litigation or drastic label changes. One may suggest that breweries refrain from hitting the social media airways that flame the dispute.  Yet social media is a weapon, and powerful enough to counter, or at least dissuade, the use of legal maneuvering. Plus, anything filed through the courts is public domain anyway, so the dispute is not reserved to privacy. This does not mean that relying on social media is effective or efficient. It creates an uncontrollable firestorm; a Pandora's box of back-and-forth. It can get ugly.

With Magic Hat and West Sixth, at least the label dispute is resolved and the public firestorm over (well, maybe not. Supporters of both sides, and fed-up neutrals, may still vent and foam over this mess). Both companies can go about making beer, and making a living.  That's the important part. Hopefully this situation serves as a lesson to other breweries in similar situations.  Hopefully.

Mediation Between Magic Hat and West Sixth Breweries

Magic Hat and West Sixth breweries go to mediation!   Well, sort of...

It is refreshing to see that the two parties in a trademark dispute are opting for mediation, according to reports.  Lawsuits and court processes are expensive, drawn out, unpredictable and uncontrollable by the parties. Mediation offers an alternative process that is quicker, less expensive, and retains control of the process to the parties. Unpredictability remains, but this is usually a good aspect allowing for the discovery of hidden or latent problems, and/or the creation of unique solutions. Hopefully, Magic Hat and West Sixth will benefit from this mediation, and I applaud them for their efforts.

What troubles me is the selection of a magistrate judge to serve as mediator.  Now, I do not know who this judge is, so I don’t want to…judge, but for the most part, judges are not mediators.  Sure, they can “mediate” according to their definition of mediation, but this falls short of the processes used by experienced mediators.  A common mistake is to assume that those in the legal profession (attorneys, judges, etc) are also seasoned mediators.  This is not true most of the time.  To be sure, some mediators are, or were attorneys and have changed professions. Yet, the experience gained in the court system does not translate well to mediation.

The primary distinction between mediation and litigation is the focus of advocacy.  Whereas the attorney advocates for her/his client and for a winning judgment, a mediator advocates for the mediation process and helps parties come to an agreeable resolution. The goal is not to prove right/wrong, legal/illegal, or decide who put forward a better argument; it is to overcome the dispute through a resolution that both parties agree on, and, for the most part, create.

Perhaps attorneys and judges realize this, and they probably do. Their challenge is to reach such resolution by using the most effective techniques during mediation. While facts and figures work well in the courts, they have little bearing in most mediations. Again, mediation is about resolving a dispute on agreeable terms by both parties, and not what the data influences. After years of argumentation, adjudication, and client advocacy, it is difficult for anybody to transfer to process-focused methods. This is not to say that some once-legal-minded mediators cannot effectively mediate, but merely to point out the fact that mediation skills are not easy to grasp and practice. Becoming a skilled and effective mediator takes time; it is a full time practice.

My fear is that the mediation West Sixth and Magic Hat will, reportedly, undertake may be more of an arbitration and less of a mediation.  That is, the mediator will hear the arguments and decide on a resolution for the parties, instead of the parties coming up with one with the assistance of the mediator. I could be wrong.  But if this mediation does not work, it will give Mediation in general a bad rap. And that will hurt everybody who becomes involved in a dispute, and that’s all of us.

Trademarks: Here We Go Again

It seems like we can't even blink between trademark disputes in the craft brewing industry. And it also seems like each dispute grows uglier than the previous.  Today, we see two breweries engaged in this ugliness: Magic Hat Brewing Co. and West Sixth Brewing, with the former suing the latter for trademark infringement. Social media sites just ooze of nastiness, mostly from supporters of each brewery, but occasionally from the breweries themselves--at least, they have not done much, if anything, to stop the flow.

Some of the rancor stems from the image of a giant beer company picking on a weaker one. And this does not sit well in a culture that has only recently become aware of the affects of bullying. Magic Hat is the playground bully; West Sixth is the new kid at school. The fight has begun.

Sadly, it could have been avoided. Private phone conversations, one-on-one discussions and even email would have been preferable to social media, lawyers' letters and lawsuits. Even though it sounds like attempts at personal contact were unsuccessful, going from discussion to lawsuit is a giant leap over some critical steps. Facilitated dialogue, mediation, and settlement conference are always options for disputants.  While more effective prior to retaining legal counsel, these options are still on the table.

Still, it surprises me that Magic Hat and its corporate connections have not figured out the power of social media. A power that can build and destroy. West Sixth knows this and are using it to their advantage. At least, so far. While I'm no prognosticator, this dispute will harm both breweries. And that's sad.