When advising craft breweries and distilleries, I always stress the cost-benefit analysis. There’s no use in getting a trademark registration for a beer name you’re only going to make once. However, if this beer is one of your best-sellers and you distribute it outside of your home state … YES, get that beer’s name registered!
Litigation costs are expensive, however fighting it in TTAB is cheaper than in federal court. Also, an attorney can help you negotiate a settlement to avoid litigation all together.
A simple consent agreement often costs under $1,000. Additionally, many attorneys (like me!) will complete a flat flee document review for under $500 to look over and make edits to an agreement you’ve already written and negotiated yourself. I don’t suggest negotiating a settlement agreement yourself – but if you do, getting an attorney to look over the document is the best option.
It is critical for breweries to keep good records – not just for ATF, TTB, and state compliance, but to lower any business litigation costs.
Good record keeping can help lower the cost of trademark litigation and any other business transactions (including evaluation when you try to sell your brewery).
Records a brewery or distillery should keep in case of business litigation:
When did you first use the trademark anywhere?
For instance, when did you write the name on the blackboard of your brewery
Take a picture! It doesn’t take up a lot of digital space and helps strengthen your case.
When did you first use the trademark in your state?
Geographic common law rights are often involved in alcohol cases because unlike other industries, most local breweries are okay with a settlement that limits usage to just their state or region.
Keep a receipt of the first sale and a digital copy of any advertising (including money spent on advertising).
When did you first use the trademark outside of your state?
I like to use this a sword, clearing a path for a client to get their dream beer trademark since most breweries fail this portion during litigation.
Keep your receipts and any advertising – including entering into beer contests and presentations at trade shows.
What dates have you sold the beer?
This data can help if the beer is seasonal.
You don’t have to use a trademark year-round to maintain usage rights, but if it’s a seasonal beer, be ready to show that the beer actually appears during the season you claim to sell it during.
Not every beer a brewery sells will be worth a trademark registration in the same way not every shoe Nike sells is work a trademark registration, but they would never let their Air Jordan trademark lapse and neither should a brewery with their beer name!
If you have any beer trademark questions, or would like assistance in trademarking your beer’s name, feel free to email me at firstname.lastname@example.org