Saturday, November 08, 2008

Stone in FL / Bottle TM controversy

Right, so it's been a while since I've had an update. Chalk it up to school and preparations for our biannual Election Day party. So first a couple small things.

1. Stone is coming to South Florida in mid-November! Rumor has it down the vine that a local distributor will be carrying the brewery's normal lineup of beers, Arrogant Bastard, Ruination IPA, etc. No word yet on whether we'll see their seasonals or the Vertical Epic series. This was a big topic of discussion at the 2006 AHA Conference in Orlando, where Stone CEO Greg Koch dashed all of our hopes by telling us that it would be years (2009 as I remember) before we'd see Stone in Florida. Well, it's almost 2009 and apparently patience pays. With any luck we'll get it on tap at the Titanic first!

2. The New York Times City Room blog has an interesting blog article about a trademark dispute between Garret Oliver's Brooklyn Brewery and New Belgium/Westmalle Abbey. Apparently the bottle design for Brooklyn's "Local 1" ale is too close for comfort to New Belgium and Westmalle's bottles. At the heart of the dispute is the raised ring around the neck of the bottle. Westmalle has traditionally used a single raised ring with the brewery's name on it, as has Colorado's New Belgium Brewing, and the double raised rings on Brooklyn's bottles raised some eyebrows. See below:

Brooklyn agreed to back down and redesign their bottles, at a cost of $60,000.

I actually wonder if they should have given up so easily. Certainly this is a perfect example of what the mere spectre of an Intellectual Property suit can do to a company, but they might have had some defenses. For example, one could argue that Westmalle and New Belgium's trade dress in their bottle shape hasn't acquired secondary meaning, at least within the US market. (How many average beer drinkers know Westmalle exists, let alone what its "distinctive" bottle looks like?) Yes the bottle shape is part of the the overall presentation package, but I doubt the popularity of these brands (delicious as they are!) is such that they have a credible secondary meaning in the mere raised ring.

And there's no chance of confusion to the consumer, as 1) the consumer is probably looking at the label anyway, and 2) though Westmalle does come in a 75cl corked bottle, that bottle doesn't have the raised ring! Nor do New Belgium's large corked bottles (La Folie, for example) come with the raised ring.

However, it is possible that the monks might have some sort of protection under treaty or international convention, TRIPS for example.

Just goes to show how murky IP issues can be, and, in Brooklyn's case, how sometimes they're just not worth fighting over.


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