Black Ops versus Tactical Ops-Beer Naming Becomes a Trademark Battle.

By the time the 1970s rolled around, there were about fifty breweries in the United States, according to The Economist. A slew of new laws promoting tax breaks for small microbreweries spurred an era of innovation and explosion of smaller, craft breweries. Today, there are over 3,000 breweries, making the industry both crowded and competitive.

One of the prominent issues that arises, according to this article from NPR.org, is the challenge of finding a name that is not already taken by another brewery. There is a dearth of names that have not already been trademarked by others that connote a positive association with beer. Consequently, there have been more legal issues popping up with name trademarks because so many designs and names infringe on others’ similar ideas.

With so many breweries around the country, people do not have malicious intention to copy others’ names and designs, but there is inevitable overlap with so much market saturation.  Frequent legal issues emerge because there are public misconceptions about the fact that merely providing state registrations and ownership of domain names ensure ownership of the copyright/trademark; but that is not always the case.   A trademark attorney navigates murky waters where there is no national database of  beer brands/trademarks, and conducts common law and internet searches  – to see if there are overlapping images or names of other breweries. Intellectual property is vital to creating a strong business, and this web of legal issues associated with craft breweries’ trademarks illustrates that.

The United States Patent and Trademark Office (USPTO) has 20,000 applications at present for brewery-related names and designs, as an article by Danielson Legal LLC points out. The article goes on to explain how

“using a mark in connection with a product that is sold in commerce accrues “common law” trademark rights in the mark, regardless of whether the mark is registered at the federal and/or state levels. Thus, the number of existing breweries and associated product names can create a “minefield” for anyone trying to determine if a mark is available for use and registration as a beer or brewery name”.

When legal disputes arise over the names and designs, there are more frequently issues with widely distributed beers that compete in the same markets and less common for breweries that are regional, according to NPR. Some disputes are resolved amicably outside the courtroom, as NPR investigates, like for example when Avery and Russian River, both brewers, found out they independently named their beers Salvation, they met at a brewery conference and hashed out a compromise to join forces under one brand, Collaboration not Litigation. This is more uncommon in terms of solving legal issues.

More often, as this article on nj.com illustrates, there are lawsuits involved. In one instance, in 2015 a brewery operating under the name Black Ops Brewing was sued by Brooklyn Black Ops, which had trademark protection since 2008. Consequently, Black Ops Brewing had to back down and alter its name to Tactical Ops Brewing, Inc. This highlights the competitive nature of the industry and the aggressiveness with which companies can sometimes pursue legal options when protecting their brands, and by extension, profits. With the hopping – pun intended – craft brewery business, it is important to conduct due diligence to protect your brand through copyright, and to seek the proper intellectual property attorneys to help with this process.

Bottom Line– It’s always better to search first!