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Beer lawsuits: Can’t we just all drink together?

John Thompson

Maybe it’s just me, but it feels like the much of the news about beer recently has been about litigious activity rather than brewing activity. Upon having multiple discussions about the various lawsuits and cease and desist orders from multiple breweries, I thought of the music industry.

How many artists are there? That is a question I am not sure anyone can answer. Each one of those artists creates song after song and each one gets a name. As it happens many end up with the same track title despite being completely different songs.

Today, it seems we have as many breweries as we have musical artists. Of course that statement is quite the stretch, but really we have more than 3,000 breweries in the United States.  And each brewery makes dozens of beers if you include one offs and special editions. But lets just talk about the core brands in each brewers portfolio. For most this includes at least 10. If you include flagships alone, each creates 3 or 4. So that is a minimum of 10,000 different beers.

You know what? There might be some naming overlap.

In 2004, Avery and Russian River tried to set the bar, when they discovered they both had a beer named Salvation. As the story goes Avery & Russian River sat down to talk about their situation. Neither felt the need to change the names of their beers. Both Salvations are still produced today, by the way.

Instead of storming out of the room in an ego driven tantrum, they decided to produce a beer together. Two years later they created, “Collaboration, not Litigation Ale.” More than just a great beer, I truly believe they wanted to lead by example in the industry.

And it didn’t work.

In the past few weeks, you may have seen the articles flying around about Maryland brewer DuClaw Brewing Company suing Left Hand Brewing over the names of some of their beers. Both produce a beer named Black Jack and Sawtooth. DuClaw owns the trademark on both of these names. But here is where things get a little tricky. Left Hand had been brewing their beers for at least a few years before DuClaw, and were recognized nationally with wins at the Great American Beer Festival.

Black Jack and Sawtooth are both common terms. It isn’t like they chose a truly truly original name for their beer. There are also a few other brewers that have alcoholic beverages named Black Jack. Are they going to be named in the suit.  What’s next? Is DuClaw going to start going after the brewers that have beverages named Retribution?

Ironcally, Jack Daniel’s at one time made a malt beverage called Black Jack Cola. Jack Daniel’s proceeded to take legal action against DuClaw, but it was later dropped.

What I am getting at is Avery and Russian River tried to seize a teachable moment, and yet no one learned.

Back to my original point about the music industry: I asked my friends on Facebook if they could help me by telling me what completely different songs (not remakes) were done by different artists and they shared the same name. Within seconds I received over TWENTY responses. Here they are:

  1. “Jolene” by Dolly Parton, Ray LaMontagne, The Weepies
  2. “Brandy Alexander” by Feist, The Walkmen
  3. “I Want You” by Bob Dylan, Tom Waits, Kings Of Leon, Mugison, Rachael Yamagata
  4. “All At Once” by Jack Johnson, Pete Yorn
  5. “Cabbagetown” by Shawn Mullins, Conor Oberst
  6. “Hallelujah” by Ryan Adams, Leonard Cohen/Jeff Buckley
  7. “Wish You Were Here” by Pink Floyd, Incubus
  8. “Blossom” by Nick Drake, Ryan Adams
  9. “Indian Summer” by Mandy Moore, Pedro The Lion
  10. “Borderline” by Alison Krauss, Madonna
  11. “Breathless” by Nick Cave and the Bad Seeds, Dan Wilson
  12. “Wanderlust” by REM, Frank Black
  13. “Cannonball” by Damien Rice, Brandi Carlile
  14. “Empty” by The Cranberries, Ray LaMontagne
  15. “Go” by Hanson, Daniel Johnston, The Innocence Mission
  16. “Hummingbird” by BB King, Wilco
  17. “Mistress” by Red House Painters, Sufjan Stevens
  18. “On The Radio” by The Concretes, Regina Spektor
  19. “Too Drunk To Dream” by The Magnetic Fields, Whiskeytown
  20. “A Good Man Is Hard To Find” by Sufjan Stevens, Tom Waits
  21. “Forever Young” by Rod Stewart, Alphaville
  22. “Wind Up” by Foo Fighters, Jethro Tull, Major Lazer

To me a few of these may have been candidates for litigation, like Cabbagetown, that’s a pretty original name to me. But when you listen to them, there is really no confusing the two. Yeah, if two people start talking about these songs it might take an extra second to know which is which, but is that really a reason for litigation?

But there have become dozens of these stories with the beer industry in the past few years. And it really annoys me and concerns me.

Some of these instances are beyond silly, bordering stupid. Like when Sweetwater Brewing Company sent Lagunitas a cease and desist over the term 420. Lagunitas doesn’t even produce a beer that mentions 420, although they do make references to it. Lagunitas founder Tony Magee had a field day on Twitter, ranting about who truly owns the term 420. And if anyone does it would be The Waldos.

And really, trademarking a term of pop culture usually doesn’t work out too well for the owner of the trademark. Just ask Denise Whiting of the Baltimore area restaurant Café Hon. She trademarked “Hon” in 2010 and proceeded to be shunned by the community. She almost lost her business because of this.

I’m not saying that Sweetwater Brewing Company is going to close its doors due to their trademark, but I know that those who are aware of this have become more averse to their products since.

One of the things that really concerns me about this trend is that it might make costs rise if every brewer must retain a legal staff to deal with such silliness. There are two things that I worry about the costs rising because of legal costs. My healthcare and beer.

Before I wrap up, I want to leave a few more positive stories about duplicate beer names.

Stillwater Artisanal broke onto the scene a few years ago with their flagship Saison, Stateside. Soon after Brian ‘Stillwater’ Strumke met Mikkel Borg Bjergsø, of Mikkeller. While talking about beer, because that is what brewers do, the came to the realization that the first beer from both brewers was named Stateside. They promptly followed the Avery/Russian River model and created the beer Two Gypsies – Our Side. And a good friendship was formed.

Another story happened about five years ago when Sam Calagione of Dogfish Head picked up the phone and called John Cochran of Terrapin Beer Company. As John retold the story on his blog, Sam was advised by his lawyers to send a cease and desist letter to Terrapin about their recently named India Brown Ale. Calagione stated he’d rather pick up the phone and deal with this personally. Terrapin then promptly changed their beer name to Hop Karma.

Now in the Dogfish Head/Terrapin case, Dogfish Head did own a trademark on the name India Brown Ale. But if you notice, India Brown Ale, is very specific. And it was unique when the trademark was filed.

DuClaw Brewing could have and should have known the beer names Black Jack and Sawtooth were not unique when they filed for the trademark, as they were both award winning beers. And to then take legal action about it years later, is in my mind a really low blow. Lastly, as far as I know, Black Jack Stout is not even being produced by DuClaw Brewing anymore. Maybe it’s just on hiatus, due to the newly altered brewing schedule from the wildly popular Sweet Baby Jesus, but you won’t see bottles of it next to Left Hand’s Black Jack Porter confusing you any time soon.