What’s up brew!

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8 May 2017

Over the last few years an uprising of the craft beer industry and microbreweries has squeezed business away from traditional brewers on a worldwide scale.  With this upward surge in a shift in beer drinking habits, it’s important for small and medium scale brewers to adopt and protect from its competitors catchy non generic brand names and visually appealing labels that will attract the typical craft beer consumer.

Unfortunately many craft brewers fail to protect their brands from conceptualisation stages, resulting in brand dilution as their brand names and trade marks are copied.  They also fail to sometimes factor in inherent distinctiveness criteria when naming their products; which can be a creatively challenging task.  Many naming conventions in the craft beer space such as “Pale Ale” or “a Helles”* are mistakenly adopted as trade marks, and then enforcement becomes a problem as such names are not unique to any one brewer and do not serve as effective identifiers of origin or source. Where possible, one must avoid adopting geographic indicators, surnames and purely generic, descriptive names. There is a proviso to this: sometimes a trade mark gains or acquires distinctiveness through use.  This is when consumers associate a name with your brand only which may require large marketing spend to be outlaid.

So what does one do?  Preferably look at adopting the unique and fanciful and the most suitable for purposes of showing the consumer what their customer journey is likely to be when they opt for your brew.  The strongest trade marks are typically invented words; such as KODAK, for example. Brand owners must however strive to make sure that these names do not become generic as then a mark loses its distinctiveness; such as JACUZZI.   Once deciding on a house brand, and any sub-brands, the craft brewer must first do an Internet search to make sure that no one in the same industry has adopted anything similar. Thereafter we suggest you pay a visit to your local trade mark attorney to conduct searches on the Trade Marks’ Register to check that the name you are looking to protect is available for use and registration in your territories of interest.

*Interesting case: In the UK there was a dispute between Camden Town Brewery and Redwell Brewery. Camden Town registered the trade mark “Hells Lager” and tried to stop Redwell from using a similar name on its beer. The crux of the dispute centered around whether the term” hells” was unique to Camden or whether it was a variation on the German term “Helles” for a kind of pale ale or light lager.

Karen-Kitchen

Karen Kitchen
Director
Trade Mark Attorney
Email karenk@kisch-ip.com
Tel +27 11 324 3057