A soliloquy in Shakespeare's Romeo and Juliet1 once posed a vitally important question which can be applied when weighing up the importance of a name and trade mark. This question was as follows:
"What's in a name? That which we call a rose by any other name would smell as sweet"2.
While Shakespeare's quotation may instantly stir up a literature lover's nostalgia and sentimentality rooted in academic debates, this article seeks to heed a warning to the brewing community by disproving such a sentiment in the realm of trade mark protection of emerging craft breweries.
A recent study has indicated that South Africa, among many other territories, has seen overwhelming growth in the Craft Beer and Micro-Brewery industry. By way of illustration, the craft beer industry originally began gaining momentum in South Africa in 2013 with as few as 30 or so listed craft breweries introduced into the South African market. It was reported in early 2017 that a total of 216 breweries have been established, a number which has significantly multiplied over the last few years3.
Craft beer, which was once considered a charming addition to a standard drinks menu, has now transformed and entirely independent Craft Beer menus have exploded into the market. Craft beer can be said to no longer be a mere beverage preference, but has rather developed into an entire culture celebrated at many craft beer festivals, restaurants and bars.
A growing concern in the craft beer industry is the implications that the growing market may have on craft beer brands and product identities. Many craft beer houses tend to base their product names and ranges on witty puns and trendy symbols – however, despite the distinctiveness that rests therein, many tend to neglect to secure trade mark protection for the witty trade marks that ultimately become the face of their brand as a whole.
Meanwhile, the breweries continue to develop extensive goodwill and reputation around those trade marks, unbeknown to them that at any moment a competitor may ride on their coat-tails, in turn contributing to the mark becoming generic. Similarly, many craft beer proprietors embark on extensive and costly advertising and marketing campaigns and lay out huge sums of money on product design and packaging without first determining if the brand and trade mark is in fact available.
If securing trade mark protection is disregarded from the inception of many craft beer start-ups, the implications may be vast.
The international craft beer community has witnessed many instances of costly litigation in attempting to curtail the implications of overlooking conducting the advisable preliminary Trade Marks' Register searches in the territories in which they sell their craft better in order to determine if a mark is in fact available and further securing trade mark registrations for same.
The implications of negating trade mark protection can be seen in the Renegade-Sixpoint matter in Denver, Colorado4. In this instance Renegade Brewing was less than delighted to be informed that Sixpoint Brewery believed that its Renegade's Ryeteous Rye IPA was confusingly similar to one of its own beers. Renegade Brewing's oversight to protect its IP led to it receiving a letter of demand sent on behalf of Sixpoint Brewery, who claimed extensive rights in its craft beer "Righteous Ale" from so early as 2005. In this instance, Renegade Brewing were forced to agree to change the name of its flagship beer to "Redacted Rye IPA" in spite of the growing goodwill that nevertheless vested in its unique and distinctive mark. As illustrated, IP and trade mark protection is nothing short of invaluable when developing a unique craft beer brand.
So ask yourself, what is in a name? By internalizing our caution and protecting your trade marks from the outset, we assure you that you will be in a position to relax and enjoy your best-selling quart, rather than defending your naming rights in dreaded and costly court proceedings. One thing for certain is that another craft beer sold under your name would simply not taste as sweet.
1 William Shakespeare, Romeo and Juliet, 1597.
3 http://craftbru.com/breweries/south-africa/ as accessed on 15 July 2017
as accessed on 30 July 2017.
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.