United States: Who Moved My Beer? (Part 2) – Hangover Prevention

Last Updated: August 23 2016
Article by Griffin S. Lee


In Part 1, we examined what happened to [LAST NAME] Brewing (formerly Dale Bros. Brewery). After growing as a craft brewery for 11 years, they felt they were large enough as a company to file for a trademark to protect their name... and then got denied.

These types of situations are more common than people realize, including for large multi-million dollar corporations. For example, have you noticed that the World Wrestling Federation, WWF, no longer exists? Whether it is a large or small company, in order to avoid this situation, there are several items you should consider early on in your branding process.

Branding is Not a DIY Activity

When it comes to handling, securing and protecting intellectual property, it's best not to treat this as a DIY activity. Intellectual property attorneys are experts who are trained to get your name or mark protected. It would be wise to seek their help when it comes to trademarks in crowded markets such as the craft beer industry where it is becoming increasingly more difficult to get trademarks.

There are currently more than 4,500 breweries in the U.S. Last year, there were 1.5 new breweries starting up every day. With each brewery having an average selection of 20 beers, there are about 90,000 names associated with beer.

This is one of the main reasons why hiring a trademark specialist who has experience with overcoming tough United States Patent and Trademark Office (USPTO) rejections makes sense.

Trademark Search

A trademark search on the USPTO website will reveal whether your name or tagline is already registered. Keep in mind that even if that particular name or mark is being used by another entity, it does not necessarily mean that mark is unavailable for your use.

Is the mark is registered under a different classification of goods/services than for what you plan to you use the mark? Even if a mark is registered under the same classification, both marks may coexist if the nature of the goods is such that confusion is unlikely.

Register the Trademark

Although you may have common law rights to the mark without registering with the USPTO, that protection is limited to the geographic region in which the mark is already in use. It is more difficult to expand nationally when protection is limited to a certain geographic area.

However, if you have a registered trademark, the protection is much broader. It is imperative to register with the USPTO as early as possible. Not only does your trademark priority vest as soon as you file, it also gives constructive notice to the public, and any would-be competitors, that you are using the trademark.

If you're not sure how the mark is going to be used or when it is going to be used in commerce, you may consider filing it as an intent-to-use application. This is a good tactical move when you are trying to win the race to file first.

Use It or Lose It?

Even if you register with the USPTO, but someone else has been using it in commerce before you, there may be issues. Whoever uses a mark first has the rights to the mark. As noted above, if the prior user has not obtained a registration, it has common law rights. Confusing isn't it?

For example, another business used the mark in commerce, before you did, in Southern California, but never registered it with the USPTO. Then you come along and register the mark with the USPTO. Although you may have a registered trademark, you can't stop the other business from using that mark in Southern California.

The important thing is to both use and register the mark early.

What doTM and ® Mean?

We've all seen the superscripts "TM" and "®" next to company names and logos but what exactly do those labels mean?

The superscript "TM" is placed after a mark and it denotes that the mark is currently being used and is considered a trademark by the user. However, it usually means that the mark is unregistered.

The superscript "®" is placed after a mark and unlike the superscript "TM," it signifies that the mark has been registered. Only federally registered marks can use this symbol.

Not only does it provide notice to the public that the mark has been registered, it also acts as a deterrent to discourage other people from using it. However, whether you use the superscripts "TM" or "®," it is important to use it.

Change is Not the End

Sometimes despite your best efforts, you have no other choice but to change. [LAST NAME] Brewery is an example of how to make the best of a bad situation.

Entrepreneurs may encounter road blocks where if you're not proactive, something as simple and basic as your company name could be taken from you. The key is not to dwell on these road blocks but to rise above them.

So when it comes to your name or mark, remember to do a search, use your name or mark early, file early, and if that doesn't work, be open to change. Once you stop dwelling on who moved your beer and are open to new opportunities, your next beer may be better than the one you left behind.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Griffin S. Lee
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