August 16, 2010

Legal Pitfalls in Craft Beer Label Design

So, if I were writing about beer art full-time, I'd be doing a lot of research and writing about the intellectual property angle of it, which is significant.

The way intellectual property (IP) works in this country is that, if you have a brand you think is worth something, you have to defend it, or you basically fortfeit any rights to it down the road. This leads to over-protectionism among brands, and beer is no different. I know of at least a dozen breweries that have received Cease and Desist orders, and it ranges from annoying to truly costly.

One dispute that's been fairly public is Bear Republic's feud with Vancouver's Central City Brewing, over the Red Rocket-Racer 5 brands that Bear Republic feels were stolen by CCBC's Red Racer.

When you look at it, the idea doesn't seem insane. Similar throwback fonts, similar color schemes (the Bear Republic are red and black and yellow), very similar naming.

Bear Republic was denied an injunction, and there's no word yet on whether they'll proceed (my guess is no, as they're doing fine and this would be expensive to pursue). But I see what they were thinking, and those marks are reasonably distinctive.

As legend has it, Erie used to have a beer called Red Ryder. Then it got two cease and desist orders. Then some of the guys from the brewery came and did a tasting at the Pittsburgh Beer Society, where a nice young woman named Courtney suggested they rename it in honor of those legal missives. So now we have:
Still a good beer, by the way.

Then there's the Georgetown Brewing-Magic Hat kerfuffle. Georgetown had a beer called the 9# (nine-pound) Porter.

Magic Hat's flagship beer is called the #9.
This one was all name, and pitted a small local brewery against a larger craft brewery that was owned by holding company (it's now owned by a larger holding company). As you might imagine, the sympathies of the and indie-leaning craft beer crowd backed Georgetown, but the money backed Magic Hat, so now that beer is called the Georgetown Porter. By all accounts there was a good-faith effort on the part of Magic Hat to negotiate, but they wanted ownership of the name 9LB, which the owners of GTown did not feel was theirs to sign over.

It's tempting to jump on the side of the underdog, but see it from Magic Hat's standpoint for a moment; the brand #9 represents many millions of dollars in annual revenue. It's one of the country's best-selling craft beers. Letting someone come out with a craft beer (even a totally different beer) called 9# allows them to use that brand equity without paying, and that's generally considered bad business. And again, if you let one company do it, it's roughly legally equivalent to giving up your IP rights.

So, if you're a craft brewery and you do dodge all of the other craft breweries, Uncle Sam might take umbrage with your design, as he did with the Ale Industries' Orange Kush White Ale:


Cool label, right? Nice blue-brown color scheme, nice swirls, playful yet tasteful. Or so you might think.
COMPLIANCE MATTERS: 94-2
“USE OF TERMS ASSOCIATED WITH DRUGS OR THE DRUG TRADE ATF, AS A LAW ENFORCEMENT AGENCY, CANNOT CONDONE ALCOHOLIC BEVERAGE LABELS THAT CONTAIN ANY NAMES OF DRUGS, DRUG TERMS OR SLANG ASSOCIATED WITH DRUGS OR ANY DEPICTION OF DRUG PARAPHERNALIA. WE DO NOT BELIEVE THAT RESPONSIBLE INDUSTRY MEMBERS SHOULD WANT OR WOULD WANT TO PORTRAY THEIR PRODUCTS IN ANY SOCIALLY UNACCEPTABLE MANNER.” (the TTB was formerly the ATF)...
Ale Industries quickly responded to the TTB, letting them know that the term Kush was taken from the Egyptian region where the chamomile was sourced. The TTB responded back with a discouraging statement, that the average person would not know about the ancient regions of Egypt, and that everyone would just assume that it was a drug, or contained drugs. [Ed. Note: "Kush" also means 'A high grade strand of marijuana.']
As that excerpt from the brewery press release (via beernews.org) makes clear, use of a term associated with drugs is a no-no, even if the term means other things. 

You may remember Ninkasi's Iron Maiden Tribute beer, "Maiden the Shade." Apparently, the goddess figure got a little extra clothed in her evolution:

Thanks to Jeff at Beervana for that, plus his explanation of why the label is so chill, when Iron Maiden is so not (something that confused my greatly in my critique).

This was supposed to be a longer and more cohesive piece. I actually pitched the idea of a longer story on IP pitfalls to the Alstrom brothers at BeerAdvocate, but got no response. So instead, I'm just opening up what will be an ongoing theme in this blog, where we discuss branding as much as we do color choices.

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