The number of licensed breweries in Canada has risen 100% over
the past five years to over 600. In Alberta and B.C. alone, the
number of breweries doubled between 2010 and
Industry trends are shifting, driven by the growth in micro and
craft breweries in Canada, a phenomenon mirrored in the U.S., where
over 4,000 licensed breweries are vying for the business of
consumers, the highest number of breweries in U.S.
And with this comes an outpouring of beer-related trademarks.
Brewery names and beer labels invariably lead to the clash of a few
beer bottles on the litigation shelf. Let's have a look at
recent U.S. cases:
Atlas Brewing Company opposed the
trademark application for ATLAS, arguing that there was a
likelihood of confusion between ATLAS and ATLAS BREWING COMPANY.
The TTAB agreed that there was a likelihood of confusion, since the
two marks are virtually identical (the addition of "Brewing
Company" is merely descriptive or generic) and the products
However, the TTAB ultimately decided
that the applicant had earlier rights, since Atlas Brewing Company
did not actually sell any products bearing the ATLAS BREWING
COMPANY trademark before the filing date for the trademark
application. The only evidence related to the pre-sales period
– for example, private conversations, letters, and
negotiations with architects, builders, and vendors of equipment.
The TTAB characterized these as "more or less internal or
organizational activities which would not generally be known by the
Secondly, there was evidence of
social media accounts which used the ATLAS BREWING COMPANY name,
but the TTAB was not convinced that this amounted to actual use of
the brand as a trademark. "The act of joining Twitter on April
30, 2012, or Facebook on May 14, 2012, does not by itself establish
use analogous to trademark use. "
Interestingly, the TTAB rejected the
argument that the beer industry should be treated in a way similar
to the pharmaceutical industry: Atlas Brewing Company argued that
"there are special circumstances which apply because
regulatory approval is required prior to being able to sell beer;
and that the beer industry is similar to the pharmaceutical
industry, where trademark rights may attach prior to the actual
sales of goods, and government approvals are needed prior to actual
sales to the general public." The TTAB countered this by
pointing out that pharma companies engaged in actual sales of the
product bearing the trademark during the clinical testing phase,
prior to introduction into the marketplace. In this case, however,
there were no actual sales.
Thus, the opposition was refused and
the application for ATLAS was allowed to proceed.
The old Atlas Brewing Company has since rebranded as
Burnt City Brewing, with a
knowing wink at the legal headaches: "We've all been
burned by something, but now we're back and better than
Hat tip to Foley Hoag for their round-up of
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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