Most attorneys advising new breweries remember to ensure no other brewery exists with the same name the client has selected. The work relating to that brewery’s trademarks does not, however, end upon successful naming of the brewery itself. Unless a brewery sticks to generic names for its beers (e.g., IPA, pale ale), it may run into trouble in days or years from opening unless the same analysis is conducted for each individual beer name.
In selecting a mark, the brewery should keep in mind the spectrum of distinctiveness. Certain types of marks are distinctive, and thus potentially protectable, from the outset: fanciful marks (e.g., Swannanopolis), arbitrary marks (e.g., Ninja), and suggestive marks (e.g., Sweet English). Descriptive marks (e.g., Tangerine Wheat) may acquire distinctiveness following a period of exclusive use, during which time consumers learn that the descriptive mark is associated with a specific source. Selecting a descriptive mark carries with it the risk that another may select the same mark before the mark has acquired distinctiveness, in which case the mark may not ultimately be protectable.
Following identification of potential marks, a likelihood of confusion analysis must then be conducted. The primary factors in this analysis are the similarity of the marks and the relatedness of the goods and services, though other factors may also be of import depending on the circumstances.
While comparing the marks themselves for similarity is a task that is usually done in a common-sense manner, the consideration of related goods and services is not always as straightforward in the alcoholic beverage industry. Presently, Trademark Office examiners reviewing an application for a mark in connection with beer consider wine, hard cider, spirits, restaurant and bar services, and sometimes even store services to be related to beer. Accordingly, each beer mark selected by a brewery should be checked against potential conflicts with these types of goods and services as well as beer and brewery marks. Should a brewery be particularly interested in using a mark that’s use may be challenged, a trademark specialist can provide guidance as to the likelihood of success should that occur.
https://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00IntellectualPropertyhttps://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngIntellectualProperty2019-02-15 16:20:042019-02-18 09:17:42Don’t Brew Up Trouble In Beer Name Selection