Throughout October, several beers from breweries around the country popped up on social media and in shops using imagery and titles from pop culture, like movies and songs. What some might call an homage might be closer to intellectual property (IP) theft.
These beers released this fall continued a theme that’s been going on for years.
“I think there are [segments] of craft beer that have an intellectual property theft problem,” says Brendan Palfreyman, a New York-based attorney who specializes in technology, intellectual property and craft beer.
The American craft beer industry is around 40 years old. This relatively young age coupled with a general avant-garde attitude to buck the establishment may have led some breweries to use label images that contain the intellectual property of other people or companies.
Palfreyman says that there are two areas where breweries can run into trouble: trademark and copyright infringement. Trademarks cover writing, phrases, logos and symbols like the Nike “swoosh.” Copyrights are used for creative works that are expressed in a tangible medium.
There have been notable examples over the years.
Stillwater Artisanal Ales received a cease-and-desist letter in 2016 over a wild ale modeled off a Kanye West album cover, The Life of Pablo.
Last year, rock band Guns N’ Roses settled a lawsuit against Oskar Blues after the Colorado-based brewery released a “Guns ‘N’ Rosé” ale, along with merchandise without the band’s permission.
California’s Stone Brewing Co. is involved in a lawsuit with MolsonCoors over the prominent use of the word “Stone” in the brewery’s rebranding of its Keystone line of beers. Stone Brewing has also gone after smaller breweries that it sees as infringing on its designs.
Several years ago, Tony Magee, then-owner of Lagunitas Brewing Co., threatened a lawsuit against Sierra Nevada Brewing for its font choice and prominent placement of IPA on a beer label. Magee dropped the campaign after the court of popular opinion weighed in on Twitter.
Most often, it seems that IP theft comes from smaller breweries that may not consult with attorneys beforehand. Such breweries often embrace a strategy to ask for forgiveness rather than seek permission.
A brewery will often post a copy of a cease-and-desist letter from the company that holds the trademark as a badge of honor.
During the height of Bud Light’s recent “Dilly Dilly” advertising campaign, Modist Brewing Co., a smaller brewery in Minneapolis, released a double IPA with the catchphrase as its name. Within hours, an actor dressed as a medieval town crier showed up in Modist’s taproom and read a cease & desist letter.
“We figured they’d probably do something to protect their Dillies, and we were preparing our wrists for a slap, but we can’t say we were expecting a scroll-yielding town crier,” the brewery stated in a blog post. “Well played on their part.”
The beer would not be released again, and the now-framed scroll hangs in the brewery’s taproom.
There are other instances of such showmanship, but some companies simply send a bill to offending breweries demanding payment for use of their creative property.
Failure to pay could result in costly lawsuits that could do irreparable harm to breweries.
Worst Beer Blog is a website and social media account that highlights the foibles in the brewing industry. From screenshots of terrible reviews to videos of brewery mishaps, it has a large following. Most brewers would prefer to stay off the site’s radar. Although some actually seek the attention.
The moderator of the site, who prefers that his real name not be used, says that he’ll usually get reader submissions when a brewery blatantly uses someone else’s IP. The volume of these submissions are so high that IP theft isn’t enough to appear on the site anymore.
“A lot of people don’t care,” he says. “The customers don’t always see it as a big deal, and I’ll hear from them in the comments about it. So there has to be something more than just brewers ripping off other people.”
A recent post involved “Ecto Ghouler” IPA from New Jersey’s Ship Bottom Brewing that evoked thoughts of the Hi-C Ecto Cooler drink tied into the Ghostbusters films. The label art features a drawing of Slimer from the movie series. The beer made it onto Worst Beer Blog because it was also aged on Gushers, the children’s fruit snack, for an added level of ridiculousness.
Palfreyman, the attorney who works with breweries on trademark issues, says the key to avoid problems is “common sense.”
Think before you print or post, he says. Ask for input from attorneys, or someone from outside of the company first.
Breweries that push these boundaries “might find something funny about what they are doing, or think it’s an homage,” he says, but they’ll find that corporations that own and defend their trademarks “are humorless.”