September 16, 2010

Moylan's v. Lost Abbey

In the past, I've covered specific instances of intellectual property disputes on this blog, and that's because, as you've probably picked up, they're a bit of pet interest for me. It's a growing and fascinating part of the law, and - more topically - an increasingly important part of craft beer design.

The most recent example of this features two high-profile breweries, Moylan's and Port Brewing (makers of the acclaimed Lost Abbey). And it's about a tap handle.

Here they are, side by side. Yes, in full disclosure, this image is from Lost Abbey's FAQ site, which is stunningly approachable, and I do not believe misrepresents the tap handles. But in case you distrust, here are images from the unimpeachable beersage:
So, as you can figure, Lost Abbey is alleging that the Moylan's tap handle infringes on their copyrighted style. As argument, Lost Abbey's Tomme Arthur is that they established the design in 2006, when they launched the beer line. If you want the details of how a single party can own a style of Celtic Cross, go read the FAQ site I linked above. But the basics are:
  • Lost Abbey claims that, while no one can copyright all varieties of Celtic Cross, a specific style of Celtic Cross for the purposes of a tap handle can be protected (legally, this is entirely accurate).
  • Lost Abbey used the tap handle since 2006, while Moylan's recently made a very noticeable change in their style.
  • Tap handles are important:
    A lot of people don’t realize it, but for a small brewery like Port, the tap handle is the single most prominent piece of brand advertising there is. A tap handle that stands out among all the others not only identifies itself to those who know what it represents, it can also lead people who aren’t familiar with the brand to try the products. We were very aware of this when we designed the Lost Abbey Celtic cross tap handle and did our best to make it unique, attractive and easily identifiable no matter whether it sat on a line of two or 50 taps. But in a line with Moylan’s new taps, that uniqueness suddenly disappears. Having invested everything in making that Celtic cross tap handle design a unique identifier of the Lost Abbey brand, the arrival of Moylan’s strikingly similar handle isn’t a mere nuisance, it’s a very serious business threat.
  • Lost Abbey's attempts to resolve this amicably met with no success. As Arthur says:
Legal stuff is ugly and gives us the willies. (In all our years in craft brewing, the closest we’ve ever come to a lawyer was when one came into the tasting room for a beer.) From the time Moylan’s new tap handles were brought to our attention last April we made numerous attempts to air our concerns to Moylan’s directly, through common friends in the industry, and eventually through lawyer-grams, in the hopes of working out something mutually agreeable that didn’t need the courts involved. Unfortunately, we had no luck. So finally faced with continuing and greater infringement that could lead to the loss of the trademark (by law trademarks must be defended or they can be voided), we reluctantly agreed to go ahead and file suit in an attempt to bring the matter to resolution. We have absolutely no desire to go to court over this we’re still hopeful that Port and Moylan’s can come to a mutually acceptable agreement.
So, that's all well and good, and Tomme Arthur is an absolute titan of craft beer with a reputation for integrity. Everything Arthur says is legally sound, including the crucial part that, IF A BUSINESS DOES NOT PROTECT ITS INTELLECTUAL PROPERTY, IT LOSES IT. I capped that because it can not be underestimated. One must be paranoid in many ways with regard to IP, and clearly Lost Abbey is. It's part of why Moylan's offer to change after they exhaust their current inventory of tap handles is not really in good faith. The Lost Abbey case and supporting documents (here via the Full Pint) are a master class in how to publicly show one's case.

But that's just one side.

Moylan's letter that prompted the suit is long and in legalese, but there are only a few possible defenses. Here are the options:
  1. Moylan had it first, and has used the design continuously
  2. The design isn't that similar, and no one could mistake the two
One of these things is not like the others?
On the first, if we are to believe Arthur, we see the image above as evidence that, while Moylan's has used Celtic Crosses for years, they've hardly been the same cross. The previous tap handles were stout, plain, and straight-edged, compared to the new tap handle, which has traditional Celtic detailing, curvature and bowing of the sides, and a more elongated, graceful shape (all of which could be said of Lost Abbey's). As someone who fancies himself an appreciator of craft beer design, I would say that, if Moylan's case is, as Brendan Moylan told the North County Times:
“It’s basically about Celtic cross beer handles that I’ve been using for 15 years,”
Then I'd say I don't buy it. That isn't the same handle, and it isn't the same design.

But that's only part of the defense. Another part is the claim that the two things just aren't that similar. Let's look again:
Are you confused?
On one hand, they are definitely similar style of Celtic Cross. The Moylan's bows and curves more, and the lettering is in different colors and Celtic fonts. The most significant difference, design-wise, might be that the interior styling is not the same; Moylan's is a series of rope swirls, whereas Lost Abbey is more of a heather pattern, radiating outward.


Artistically speaking, these are definitely not the same, and I actually believe that Moylan's had no intention of violating copyright.

But that's not the lawsuit. The suit is about whether the new Moylan's design actually infringes on Lost Abbey's intellectual property (intent is irrelevant), and could potentially confuse or mislead a customer, or damage existing brand value.

I'm not a lawyer, let alone a patent lawyer, but, if someone were to ask my opinion...

I'd say it does do that. On a tap rack, those two look awfully similar. I would have to look closely to tell them apart, and I run a blog about beer design.

If I were Brendan Moylan, I would swallow some pride, ditch the "I've been doing this forever" shtick, and call Tomme Arthur. Grab a beer. I bet you anything Tomme will help cover the costs of the handles, and you can do a couple events and a collaboration beer to make up the rest. The money you'll both save on lawyers will be astronomical. No one's saying anyone did anything wrong, but life is life and business is business. it's just good business to avoid the costs of this suit, and from my experience your life is better when no lawsuits of any kind are involved. Plus, it'll be a feelgood story for us beer nerds.


Thanks to The Full Pint, Beernews.org, and Josh Oakes at the Hop Press for their reporting on this issue.

4 comments:

  1. Interesting post on the topic. I think it's also not cooincidental that Lost Abbey starting to more widely distribute in the Bay Area, Moylan's turf, shortly before this suit began

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  2. Actually, yes I can see how it would lead to confusion, and more importantly I can see the Trademark infringement pretty easily. I've been through a few of these types of battles over my years in business, and I don't see how they have a solid defense...Moylan that is. I do love their beer's along side Lost Abbey, but their legal department should have done some more research and work here it seems.

    I hope it's a simple and clear cut case that settles quickly and doesn't much affect either brewery, but that rarely happens. If I were Moylan...I would just redesign it, pull it off the market, apologize and hope that it does no further.

    Ilya

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  3. Great blog about these two fabulous breweries.

    I do have to say I was a fan of Moylan's, but that all changed while at the GABF. Didn't anyone ever tell the Moylan people, "to take the high road?" I supposed not, since they were wearing t-shirts with tap handles on them and tap handles around their necks in Denver. They lost my respect and probably some other beer people. It is a shame since they make good beer, but this beer drinker won't be buying it anymore.

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  4. Wow, that's not exactly classy behavior by Moylan's.

    Whatever the legalities of this are, it is clear to me that Lost Abbey is winning the PR battle. That FAQ site, the supporting documents, the persuasive and conversational tone of Tomme Arthur's response are all very sympathy-inducing. On the other side, Moylan's response seems to be best described as haughty petulance, like anyone who dares to disagree with them is just a jerk. Bold prediction: That's not going to help in this community.

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