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Hellbender Brewing Company wanted to call its flagship red ale Fire Belly Red after a type of newt. After all, most of its beer names—and the brewery name itself—are references to salamanders: Eft IPA (a baby newt), Southern Torrent Saison (a salamander found in the Pacific Northwest), and Grampus (a nickname for hellbenders).
“But does that indicate our beer gives you indigestion?” co-founder Patrick Mullane wondered about Fire Belly Red. “We’re sitting there talking about beer names, and meanwhile our building’s shaking because the Red Line is 15 feet from the back of our building.” So he and co-founder Ben Evans named the beer Red Line Ale.
Salamanders are always their first choice for names, followed by local references. If that fails, they try to come up with something wacky. A new beer brewed with Australian hops will be named Chazzwazzer because an Australian character in an episode of The Simpsons refers to bullfrogs as such.
And these are just the names that have worked out. Even once Hellbender has found the perfect moniker, however seemingly esoteric, three out of four times they’ll have to reject it because it’s already taken. The proliferation of breweries and the pressure for them to continuously turn out new styles of beers has created a trademark minefield for names. “Once you come up with an idea, then there’s just this fear that someone else beat you to it,” Mullane says. “Beer names are completely off the wall because there’s just so many of them out there.”
Most breweries will head to sites like ratebeer.com, beeradvocate.com, or Google to get an idea of whether something is already taken. Port City Brewing Company always goes the step further of having its lawyer look into potential names—although not every brewery does this. “You really have to have a more in-depth search that’s done by a professional, someone who knows what they’re doing as far as these trademark searches go,” founder Bill Butcher says. “It’s not something a layman can do an effective job at.”
In 1985, only 188 beer trademark applications were filed in the U.S. Last year, there were more than 4,600. And this year, the number is on track to surpass that, says beer attorney Dan Christopherson, who works for Lehrman Beverage Law in D.C. and specializes in trademarks. (Yes, beer trademarks are enough of an issue that there’s a lawyer who specializes in them.) Christopherson works with about 15 breweries in the D.C. area in addition others around the country.
“It comes up quite a bit,” Christopherson says of brewery trademark disputes. “It certainly makes the headlines a lot more frequently now, but I anticipate that there’s a lot of them, just from my own experience, that get handled behind closed doors.”
For the most part, craft breweries try to resolve these disputes without lawyers. DC Brau recently agreed to change the name of its Solar Abyss double IPA at the request of a Pacific Northwest brewery, which has a registered trademark for Abyss. “They just reached out to us and said, ‘Hey, this is awkward, we’ve got this beer that we’ve been brewing for X number of years, and we would really like you guys to change the name of your beer,’” Skall recounts. “And I said, ‘Absolutely, our bad.’” DC Brau will continue to use the brand until the current supply runs dry. Next year, the beer will get another yet-to-be-determined name.
“We’ve been on both sides of the trademark issue, and it’s just something that’s going to be confronting our industry more and more and more. Once you’re on both sides of it once, it’s pretty easy to just try and solve things diplomatically.”
Skall says DC Brau has to contact other breweries about similar names a couple times a year, and usually, they agree to go back to the drawing board. Only once has it at all escalated. DC Brau sent Denizens Brewing Co. a cease-and-desist letter when the Silver Spring brewery initially planned to call itself Citizens Brewing Co. DC Brau feared it would cause too much confusion with its beer, the Citizen. Preferring to invest in brewing equipment rather than legal fees, Denizens adopted the new name. “We’re great friends with them now, and things ended up working out in the long run,” Skall says.
The one beer name Bluejacket had to change ended up spawning a friendship with brewers on the other side of the country. One of Bluejacket’s opening beers was called the Butcher, which was a collaboration with Red Apron Butcher’s Nate Anda. Beer Director Greg Engert and his team were rushing to open the brewery, so he admits the name was decided on at the 11th hour. They ended up getting a very nice letter from Societe Brewing Company in San Diego saying that they had been brewing a Russian imperial stout called the Butcher and won awards with it.
“I called them immediately and was like, ‘Hey, listen, in this specific case, I didn’t do my due diligence, and if I had, I would have noticed it,” Engert says. Societe ended up sending them some beer, and Bluejacket sent some of its own back. Since then, they’ve hung out together at craft beer festivals.
Of course, things aren’t always handled so amicably. “A lot of times what happens is it’s not a fair fight,” says Christopherson. “You have one company that has a lot more resources than the other company, so even if they have a strong case, the smaller company doesn’t have the $100,000-plus to spend on seeing it through.”
3 Stars Brewing Company experienced this first hand when it first launched. Moët Hennessy sent a cease-and-desist letter asking the D.C. brewery to alter its initial shield logo, claiming it was too similar to that used on on Dom Pérignon Champagne bottles. “As a small guy, this is one of the most wealthy companies in the world, and when they send you a cease- and-desist, you’re like, ‘Well, what would it take for me to fight this?’ Oh, it wouldn’t be a fight… They would bleed you for every dollar you were willing to put into it,” says co-founder Dave Coleman. 3 Stars still had to spend a couple thousand dollars on a lawyer to go back and forth with the company on the adjusted logo.
Most smaller breweries can’t afford to trademark all their beers, just the flagship brands. “The only guys that really do a lot of trademarking are the big guys,” Coleman says. “And that’s why you rarely see a little mom-and-pop brewery issuing a cease-and-desist to another little mom-and-pop brewery. It’s huge companies that have teams of lawyers in-house.”
At the same time, the court of public opinion can often play a role in the outcome of a trademark dispute, says Brewers Association spokesperson Julia Herz. Earlier this year, Lagunitas Brewing Company dropped a beer label trademark infringement lawsuit against Sierra Nevada after backlash on social media. “Breweries are very connected to these very engaged, vocal, passionate customers, and so there’s a yardstick of integrity going on that the beer-lover holds the brewery to,” Herz says. “And if the beer-lovers speak in a group, breweries often listen.”
Still, that doesn’t change the fact that even routine trademark issues can get pricey for small businesses. Mullane says the owners of a meadery set to open in Missouri contacted Hellbender about using the same name. The brewery spent about $5,000 in lawyer fees just conducting research and sending a letter to the meadery saying it couldn’t use the trademark. All that, and the meadery never even opened. It turned out the owners were indicted on federal charges for distributing $6.7 million in synthetic drugs. Part of the drug money was used to fund the buildout of the meadery.
“When you’re protecting yourself, the burden’s on you,” Mullane says.
As a result of the oversaturation of names, breweries are having to get more creative. That means puns are nearly always out of the question. “Puns are difficult,” says attorney Christopherson. “Anytime my client comes up with a pun, I have to give a little extra care to make sure it’s not being used.”
Aside from the easiness of idioms, 3 Stars’ Coleman says brewers tend to be similar types of people with similar types of ideas. He wanted to do a beer called Saisons in the Abyss, named after the Slayer song “Seasons in the Abyss.” “Yeah, right, there’s like 10 beers on RateBeer called Saisons in the Abyss. Of course there are, because lots of people listen to metal.”
Instead, Coleman is beginning to observe some other trends: “You’re starting to see breweries just number their beers, like, ‘This is beer 242.’ Well, you know nobody else is doing that yet.”
Others opt for longer names, to the point where they’re almost complete sentences. And then there is the strategy of using non-English words. “Only so many people speak other languages or even think to look that up,” Coleman says. “Even better, people just combine two words together, come up with a fake word, and use that.”
Photo of Hellbender tasting room by Darrow Montgomery
Click here for more from our 2015 Beer Issue.