The craft beer scene in South Africa has exploded in recent times, with new exciting breweries and beers being made available to consumers almost daily. The entire beer market appears to have been reinvigorated by the ranges and choices of beers now available, which in the past was only possible to those interested in wine. These brewery projects are often the product of passion and love for the craft of brewing and beer, the result, amazing creative beer, bottling and the branding. Unfortunately, however, after all this passion and creativity finds its way into the physical product (a tasty craft beer), the brewer/ proprietor fails to take one of the most important steps in protecting his new, tasty and uniquely identifiable brew. He fails to protect its look, feel and overall brand identity, he fails to obtain the only statutory monopoly legally available to him, he fails to trade mark his new brand.
Setting up a micro-brewery is not cheap, the equipment is expensive and often needs to be imported. The finest raw materials are required in order to produce maximum flavour, and distribution is a monumental task over South Africa's vast geography.
The odds are against the craft brewer from day one as he tries to compete with, not only one of the largest commercial breweries in the world, but also one of the fastest growing micro brewery scenes in the world. The start-up costs are high, and the brewer needs to get consumers drinking his beer as soon as it hits the shelves in order to survive. So why would he spend even more of his stretched budget on trade mark protection? He can't afford it and trade marking brands is the business of multinational corporations not microbreweries. However, the real question to ask is how he can afford not to do it.
In a market place which is so fearlessly competitive and defined by creativity, the craft brewer cannot afford to leave his unique name, label and brand for his new apricot flavoured pale ale go unprotected. So what does he do? He should trade mark everything unique to his brand. But why? And isn't it expensive?
The reality is it's not that expensive at all to obtain a trade mark registration. What is expensive, however, is trying to prevent competitors from passing off or stealing your branding without statutory trade mark rights to enforce against them. It is always cheaper to enforce registered rights (i.e. a trade mark registration) rather than to fight an infringement battle with the far blunter instrument of the common law.
So the clear message to the craft brewer is protect everything which is yours, do not leave it available for others to pillage and dilute. You have taken the plunge and decided to create a craft product, characterised by uniqueness and creativity, protect it, it's yours. The reality is in such a competitive market space the law only allows you one form of exclusive perpetual monopoly, and that is in relation to your branding, it's the trade mark. Take the law up on its exclusive offer to protect your hard earned space in the market, and in the event some unscrupulous competitor tries to infringe on your branding and market space, you will be equipped with the most efficient legal tool to economically and efficiently protect your brand.
Originally published 5 August 2016
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