craft beer trademarks - Brewery small - brewing tanksThe popularity of craft beer increases every year. In 2015, there were 4,144 breweries in the United States.  Pennsylvania was one of 15 states that is home to more than 100 craft breweries.

Starting a brewery may be a popular endeavor but it is not simple. There is a thicket of state and federal regulations that you must understand and comply with even before you open your doors to the public. If you want to bottle and distribute beer beyond the confines of a brewpub/restaurant there are even more rules to follow. It is no wonder that there are numerous consultants — from lawyers to trade associations — who offer their services to help you comply with the rules and regulations.

If bottling your brew and distributing it to the public is your goal, a branding or marketing plan should be a central component of your business plan. The first step is to select a trademark; never an easy process.  We counted more than 35,000 registered live U.S. trademarks that include “beer” in the description of goods and services!  A trademark is any word, phrase, design or device that identifies the source of the goods identified by the mark. The owner’s rights to a mark are infringed if someone else uses a mark which is “confusingly or deceptively” similar to his or her mark. The degree of such confusion, if any, is based upon the similarity of use and the graphical and audible (i.e., how it sounds) similarity of the two marks.

So, how do you choose a distinctive but non-infringing trademark?  First, create a list of trademarks you like and, second, perform a trademark clearance search for each mark.  You could do it yourself but the most effective way is to purchase a commercial trademark clearance search, which is much more thorough than a typical Google search but is, of course, more expensive.  Don’t be distracted by the price, though.  It will be far more expensive to be forced to rebrand in compliance with a cease and desist letter.  Once you have a high level of confidence that the mark you have chosen is not infringing, you should file a trademark registration application with the U.S. Patent and Trademark Office (“PTO”), a process that may take from nine to 12 months from start to completion.

The craft brewer undertaking this process must understand the timing issues. Although you don’t need a registered trademark to comply with the federal and state liquor regulations, you must be confident that your trademark is not infringing someone else’s intellectual property.  Here’s why.  After you have obtained the necessary federal and state brewers license, you may also have to submit your labels for approval to the Alcohol and Tobacco Tax and Trade Bureau (“TTB”) to obtain a “Certificate of Label Approval” (“COLA”).  Although the TTB does not require you to obtain a COLA for beer sold within a single state, some states such as Pennsylvania will require you to obtain a COLA anyway.  Processing of the COLA takes approximately 3 weeks.  Before you start selling you also must submit your labels to the Pennsylvania Liquor Control Board (“PLCB”) for brand approval. Neither the TTB or PLCB will determine whether you have the right to use the trademarks you choose.  The TTB, in fact, states: “TTB approval of a COLA neither automatically confers trademark protection, nor indicates that a particular mark may be used in violation of applicable intellectual property law.”  What does all this mean?  It means that if you aren’t confident that you have rights in the brands that you choose and you receive a cease and desist letter after you’ve obtained government approval of your brands, you may find yourself having to choose another trademark and resubmit all your regulatory filings.  It may also mean you have to refile your federal trademark applications.

Avoid the delay and expense created by multiple refilings and make sure you perform a solid comprehensive clearance search before submitting your brands to the government for approval. If you need assistance, contact the trademark lawyers at Lipton Weinberger & Husick.  They have the experience you are looking for.

— Adam G. Garson, Esq.