International Beer Day is on 7 August 2020, so lets raise a cheers and look at some of the trade mark issues in this ever expanding industry.
Beer is a huge commodity and craft beer is big business.
Branding and beer have a long history. Indeed, Bass's application for its Pale Ale Label back in 1876 was the first ever UK trade mark registration. Since then, the continuing demand for craft beers has increased focus on the importance of branding in such a competitive marketplace.
Source: Rob Reading © Clarivate 2020
What's in a name?
There are a number of different naming systems in the beer sector. Think hop-based quips (Hoptimus Prime, Phantom of the Hopera), place names (Sierra Nevada), song names (Rye of the Tiger, Sweet Child of Vine), collaborations (Trooper - Iron Maiden, Road Crew - Motorhead, Stormtrooper beer).
Part of the reason that brewery and beer names are getting so unusual is to try and stand out from each in such a crowded space.
Informal searches can be conducted online to check whether there is already something similar out there. Internet searches and sites such as RateBeer.com and BeerAdvocate.com can be a useful starting point.
However, such searches can only get you so far; official trade mark registers in the territories of interest should also be conducted to ascertain similar registrations already existing. As highlighted by the two recent cases below, its not just beer names that have to be considered.
Once names are chosen, checked and registered, be aware of potential risks to your own names and ensure that there is monitoring in key jurisdictions. For trade mark filings, this can be more formal trade mark watching, but for unregistered rights/new launches, services such as Google Alerts can be set up on key words and sends internet hits at regular intervals.
The Drinks Are Not Free in Clwb Tropicana
Newport-based Tiny Rebel have recently undergone a name change of their flagship CLWB TROPICANA following a trade mark dispute with Tropicana Products Inc. (owned by PepsiCo), who own rights to the fruit juice brand TROPICANA.
Back in 2017, Tiny Rebel applied to register the name at the UK Intellectual Property Office and received opposition proceedings. The Hearing Officer decided in favour of Tropicana Products and Tiny Rebel appealed to the Appointed Person. Unfortunately for them, that decision also went against them and they have now changed the name - to CLWB TROPICA. They are also using the deleted 'NA' to refer to their Non-Alcoholic version of the bestselling IPA.
Statement from Tiny Rebel on their website here.
For me, the decision is not so surprising from a trade mark perspective; the TROPICANA brand has an established reputation on the UK market and 'beer' and 'non-alcoholic beverages' fall within the same class (Class 32). In addition, there has in recent years been an increased focus on the "Lo-No" (low and non-alcoholic beer) categories, further narrowing the differences between such products.
Who is the Boss?
Also hailing from Wales, Boss Brewing applied for a range of trade marks for their BOSS BLACK and BOSS BOSS beers, and received objections from Hugo Boss. The brewery ended up spending significant sums defending the oppositions which resulted in the names being changed to BOSS BREWING BLACK and BOSSY BOSSY.
Low to No Category
There is a new trend across all alcoholic beverages gaining traction; the low to no-alcohol ("NOLO"). There are a number of reasons for the trend, including health and calorie count, but the consumer demands are on the rise. Big beer brewer AB InBev announced in 2018 that they had created a new position of chief of non-alcoholic beverages to boost its footprint in the NOLO sector and the number of NOLO brands of beer now available has increased in recent years, including a number of popular brands being launched with no alcohol (such as Brewdog's PUNK FA, Adnams's Ghost Ship, Heineken's 0.0 and AB InBev Budweiser Prohibition).
Some of the Big Beer companies (and others) are exploring new technology to replace the single-use plastic beer rings currently used. E6PR developed the first eco-friendly six pack ring which is biodegradable and is now being used by a number of companies. Their website states that there are "over 150 brands from nineteen countries in four continents" (see https://www.e6pr.com/ for more information).
Danish brewer Carlsberg is looking to glue cans together in a 'snap pack' and are also working with a Danish innovation company ecoXpac, packaging company BillerudKorsnäs, and the Danish Technological Institute to product a new paper based bottle made from sustainably-sourced wood fibres with a waterproof inner barrier.
To the brewery, and beyond!
Remember not to underestimate the popularity and leverage that can come from branded merchandise. Many consumers will want branded merchandise from their favourite breweries and many now sell a range of clothing, glassware, barware and other items such as beer mats, lanyards and badges. These items are also very popular at beer festivals! Be aware, however, that if such items become standard goods sold commercially, it is a good idea to also register the trade mark in expanded classes to cover the merchandise, not just the beer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.