How Do I Name My Beer?
Craft brewery branding rights in Oregon
on July 29, 2019
Updated on February 8, 2021
In Oregon, craft beer is a serious business: The Oregon Brewers Guild reports that, going into 2017, there were 230 brewing companies and 261 brewing facilities in the state, earning a total of $4.49 billion dollars and providing more than 31,000 jobs. And, as the market is only growing in the Pacific Northwest, the legal issues associated with this industry are vast.
“One of the big issues we run into is that all alcohol is considered—under the law and by the U.S. Patent and Trademark Office (USPTO)—to be a related good,” says intellectual property and patent attorney Thomas J. Romano, “which makes it very difficult for a small brewery to find a brand.
“Often,” Romano continues, “I deal with bootstrapped individuals with a dollar and a dream. We try to work with people to make sure they don’t make a branding mistake early that they will pay for later; a stich in time saves nine.”
Romano states that, in Oregon’s market, it’s very important to do the correct thing up front. “When I’m counseling a craft brewer, I always say that your branding is just as important as your beer recipe,” he says. “That’s the way folks are going to latch onto your product. You may have the best IPA in the world, but if consumers don’t know the source of that IPA, then you’ve got nothing. You have to protect your brand. If someone in New York starts using your brand, you could get locked out of other markets.”
How a newer craft brewery can protect themselves
For Romano, pragmatism is key: “Don’t fall in love with your brand until you’ve talked to all the different interested parties … to ensure they’re all getting the same buy in. Whether it’s your marketing team or your lawyers, be pragmatic and be flexible up front.”
He further warns that brewers should so some searching on their own. “It’s not foolproof, but they can do what I call a ‘knockout search,’” he says. “Look for a direct hit.” In order to do so, you’ll want to use The USPTO’s searchable database to find marks that are pending or registered as active. There is also the TTB database, which has all U.S. government registered alcohol labels. If you do want to sell alcohol across state lines, you must obtain label approval to do so.
“I would say that some of the best resources out there are the consumer-based websites and rating systems, like ratebeer.com,” says Romano. “The aficionado in the craft brew world wants to be the first to do things; they want to be the first to write a review of a new brew. Because of that, there is a huge searchable database of brands on these sites.”
A reputable and experienced attorney can help you with a more formal clearance process, based on a much broader legal standard. All aspiring or seasoned craft brewers can benefit from this work; it will protect them early and avoid costly issues down the line.
For more information on this area of law, see our intellectual property overview.