3 Steps to Protecting Your Microbrew’s Name and Brand

From ales to lagers beers, microbrews and the breweries that produce them are experiencing booming success regionally and across the country. Microbrew drinkers are now more like connoisseurs as they seek out their next favorite flavor profile, taking note of the subtleties of each drink. Whether you’re a small, “backyard” type operation producing just a few barrels, or a larger microbrewery with a national profile, there’s one thing that’s just as important as the quality of the beer you produce: the integrity, reputation, and protection of your microbrew’s name.

New microbreweries crop up regularly, and news about the next “big thing” typically gets around through word of mouth and the internet – two areas ripe for confusion. In order to make sure that your microbrewery name stays associated with the correct product – your own beer, and not someone else’s – it’s a good idea for you to protect that name with a federal trademark. That way, you can be sure that other microbreweries with similar names don’t appear and create inadvertent confusion as to which beer is which. You’ll also protect yourself against ill-intentioned brewers who may wish to purposely confuse consumers by trying to build their own reputation off of your hard work – a situation that is more likely to occur once you begin to experience success.

Even if you’re a small, regional microbrewery, you’ll benefit more from a federal trademark registration than a local, state one. For one thing, if you wish to expand to other states, you’ll already be protected and have an established name on record nationwide. For another, if a small brewery elsewhere has a similar name, registers a federal trademark, and wishes to expand to your region, you may have a more difficult time proving your priority claim to the name to the United States Patent & Trademark Office. Under the Lanham Act, a federal trademark gives you the strongest and broadest protections against infringement and challenge from any other microbrewery in the U.S.

Registering a federal trademark for your microbrew can be a complicated affair, but taking the following three steps into account can help you prepare for the process to run more smoothly.

 1) Research and select a strong trademark for your microbrew brand. 

When you submit your microbrew trademark application to the USPTO, they’ll look for two things about the name your choose: whether it infringes on an existing mark (by being similar or identical), and whether it is a strong mark that does not merely describe your microbrew.

Selecting a non-infringing mark requires comprehensive trademark research (which should be run by an experienced trademark attorney). In addition to identifying any existing microbrew with the same name as the one you desire, you also need to account for any that might be deemed “confusingly similar” by the USPTO. Confusingly similar could mean several things – a subtle spelling difference, vowel replacements to create a soundalike word or phrase, differences in spacing or other formatting, and any number of other small differences that may not make one mark distinctive enough from the other. A trademark attorney can help you by using professional-grade research tools to do a trademark search that gives you more complete information about the full range of identical and potentially “confusingly similar” marks out there.

Selecting a strong mark means choosing one that is a unique name for a brand of a microbrewery. In the eyes of the government, the strongest trademarks are those that are the least descriptive of your product.  The best trademarks are “fanciful” marks (e.g. a name that consists of a word or term that you’ve completely made up),  “unrelated” marks (e.g. a name that uses existing words but that have nothing to do with your product, or anything about it), and “suggestive” mark (a name that is only related to your product through a more distant connection – not a direct description).

Weaker marks that are less likely to be approved by the USPTO for registration on the Principal Register are termed “descriptive” (they refer directly to some aspect of your microbrew and are not imaginative or creative). “Generic” marks are the weakest and are unable to be trademarked – these marks simply identify exactly what your product is or what it consists of; “Brown Ale,” for example. You can use a generic term in conjunction with a trademark – your brewery name, for instance – but you cannot protect it for your exclusive use.

2) Submit your completed microbrew trademark application.

 Here’s where you’ll submit information about your product and your intended mark to the USPTO. Your trademark application must include several items.  Most notably a trademark application includes: 1) the name of the company or individual that owns the trademark, 2), the trademark itself,  3), a description of the goods that the trademark represents (e.g. beer or microbrewery services), 4), a statement of whether or not you have sales of your goods using your name, and, 5) a sworn statement that all the information in the trademark application is true.  It is highly recommended that you engage the services of a trademark attorney to assist in completing the trademark application.  Many of these questions may seem easy to answer, however, best legal answer to the questions is not always obvious, and, an incorrect answer can lead to the refusal of your trademark application by the USPTO.

 3) Police your microbrew trademark.

No matter how distinctive and strong your mark is – even if you’ve chosen one at the “fanciful” or “unrelated” end of the spectrum – there’s always the risk that another brewery will choose the same name, by chance or by design. The USPTO doesn’t actively police trademark infringements – that’s your job as the trademark owner. Use all the tools at your disposal – internet research, the USPTO active register, and access to pending trademark applications (a privilege only available to registered trademark holders) to look out for potential infringements and ensure that no other microbrewery comes along and chips away at the protections and reputation that you’ve built thanks to your registered trademark.

Josh Gerben, Esq.

Josh Gerben, Esq. is the founder and principal of Gerben IP. In 2008, Mr. Gerben started the firm to provide high-quality trademark services at reasonable prices. Today, he is recognized by the World Trademark Review as a top trademark filer, having registered over 7,500 trademarks. The contents of this blog are for informational purposes only and may not be relied on as legal advice.

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