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What Is Mankind’s Greatest Invention? The Wheel or Beer?
By Z. Peter Sawicki & James L. Young
Bud Light and Miller Lite – all the rage in the ’90s. Large corporations captured the attention and wallets of beer drinkers with light beer. How times have changed! Today, craft beer is what’s happening. Who cares about alcohol content and calories, as long as the beer tastes good.
Most lawyers don’t get to represent large brewers. But craft beers, at least at inception, are made in garages and basements and later, if successful, in some commercial space. The science of brewing has advanced to the point where anyone can buy a kit, get lessons (on YouTube) and start brewing. Minnesota state law permits small breweries to sell their beer directly to consumers. This has spawned a surge in carpenters, doctors, taxi drivers, wait persons, etc. trying to brew beer to sell to others. Many dream of becoming the next Surly, and they all need legal counsel. So what do you do when that new client shows up in your office and says, “I want to open a brew pub!”
As the client’s business attorney, there is a lot you can and should do that we don’t do. We are IP attorneys, so we’ll just touch on some of the typical IP issues that will likely pop up for your new beer brewing business client.
For brew-related trademarks that include terms such as Northern, Great Lakes or Minnesota, the train has left the station. Small batch brewers are not a new phenomena. Every serious beer drinker – or so it seems – has or will very soon get in on the action. Choosing a trademark that is distinct from others is always a challenge. Common terms, especially geographic ones, are taken. This is one reason why Surly is so protectable. As the Grail Knight said to Indiana Jones, “Choose wisely,” and so should your client.
Have your client (or you) Google the proposed beer name first. Then perform a Whois search for Domain name (URL) availability. If the searches indicate possible availability, get a competent trademark searcher involved for the last searching step. If the mark still appears available, file an application with the Federal Trademark Office to reserve your client’s trademark rights while at the same time purchasing the rights to the matching domain name(s). These simple steps can make you look good.
The typical novice beer brewer does not have the cash to advertise in traditional ways, and in today’s world doesn’t have to, thanks to the Internet and social media. Websites, Facebook, Twitter, etc. have all proved to be quite effective at creating the necessary buzz to promote brewpubs and taprooms. One client of ours has a website, but uses its Facebook page to promote weekly or daily specials. Many newspapers and traditional print magazines all have websites and/or social media channels that provide reviews of products and services, such as local brewpubs. Review sites such as TripAdvisor and Yelp! can significantly affect the public’s perception of your client’s products/services.
The services of an attorney don’t come into play when the reviews are good or the comments are complimentary. But what if your client receives undeserving bad reviews or just plain angry and defamatory postings? You should help your client prepare procedures for handling such situations. Of course, there are reviews or comments on sites that can’t be removed. If your client is going to play in the social media sandbox, then it should know that social media management can be a full-time job, and to expect the unexpected.
Website graphics, bottle labeling and promotional materials of all kinds are all creative works. Little thought about ownership of such works is given at the initial stage of a business, or just as bad, there are rampant misconceptions as to how ownership is obtained. If your client pays a creative person to create a graphic, design a label or build a website, your client then owns the original creative work, but does not own the copyrights in that work without an express written transfer of ownership from the creator. The copy that the creative person provided to your client (the deliverable) is what your client has a right to. The copyright rights are not part of the deliverable unless there is a written transfer of such rights or a promise to transfer such rights. These rights are separate and distinct and their transfer has to be documented in writing. This is federal law. See 17 USC 201. 17 USC 202 says in part “Ownership of a copyright … is distinct from ownership of any material object in which the work is embodied.” Copyright rights should be viewed as a separate purchase.
So, what is mankind’s greatest invention? Why beer, of course! A wheel does not go nearly as well with a pizza. Cheers!
Mr. Sawicki & Mr. Young are shareholders at Westman, Champlin & Koehler. Pete & Jim both have over 30 years of experience obtaining, licensing, evaluating and enforcing patents. Each has also developed an extensive practice regarding the clearance, registration, licensing and enforcement of trademarks. They work closely with clients to understand their values and business plans, and to provide customized and effective strategies for intellectual property asset procurement, growth, management and protection. To contact Z. Peter Sawicki call (612) 330-0581 or James L. Young at (612) 330-0495. Please email them directly at firstname.lastname@example.org or email@example.com.