Litigation, not collaboration

One of my favorite stories illustrating the brotherhood of craft brewers involves Adam Avery (of the eponymous brewery) and Vinnie Cilurzo (of Russian River Brewing). After the two men realized each had a beer named “Salvation,” they were faced with two options: the one who had used the name first (Avery) could take legal action to force the other to stop using it in a trademark dispute, or they could work something out amicably.

They chose the latter option, out of which a new beer was born: Collaboration Not Litigation. They worked out a blend of the two beers in 2004 and released it commercially for the first time in 2006. That beer is now released annually as a seasonal by Avery, and it serves as a reminder of the best traits of craft brewers, especially their willingness to consider competitors as friends. Both breweries continue to sell a beer named Salvation, and neither brewer feels threatened by the other’s beer.

My, how things have changed.

In what seems to have been the opening salvo in a new war of legal wrangling among craft brewers, things went sour when Lost Abbey’s Tomme Arthur sued Moylan’s Brewery last September over their use of re-designed Celtic cross tap handles. Moylan’s had used a particular Celtic cross tap handle for several years pre-dating Lost Abbey’s use of Celtic crosses in their own handles, but Moylan’s launched a re-design in 2010 that Arthur felt specifically copyied the Lost Abbey design. After owner Brendan Moylan refused to change his new handles, Arthur brought in the lawyers and filed a trademark lawsuit.

But things have escalated across the industry in 2011. Colorado brewer Oskar Blues was compelled to change the name of their Gordon imperial red ale to G’Knight at the behest of Gordon Biersch. Samuel Adams is trying to stop San Tan brewing of Arizona from selling their custom glass, which the Sam Adams folks think is a rip-off of their custom-designed Boston Lager glass. Marble Brewery of New Mexico is suing start-up Marble City Brewing of Knoxville, Tenn. over their choice of name. Mad Elf brewer Tröegs has taken legal action against fellow Pennsylvania craft brewer Bethelehem Brew Works in an attempt to stop them from using “Rude Elf ’s Reserve” as a beer name.

And in one of the most blogged about actions of this kind, Bell’s Brewery recently sent a cease and desist letter to home-brew internet retailer Northern Brewer instructing them to change the name of their “Three Hearted Ale” clone kit, as it infringes on the trademark of its namesake, Two Hearted Ale. The letter caught the folks at Northern Brewer off guard, as they’d been selling the kit without complaint for a decade, and they were surprised no one at Bell’s had bothered to call them and discuss the matter before sending the C&D letter. The resulting hoopla prompted Larry Bell to publish a letter explaining why he believed Bell’s needed to take the action it did.

These are not the first lawsuits or “cease and desist” letters in the history of craft brewing, but things certainly seem to be heating up.

I have no intention of arguing that all of these legal actions were unnecessary. I’m no trademark lawyer, but it is my understanding that the owner of a trademark must defend against every possible infringement—even ones they might personally approve of—or else they will lose their ownership of the trademark and can’t defend against infringements that genuinely damage their brand. For example, even if Larry Bell was flattered by Northern Brewer paying homage to Two Hearted Ale with their Three Hearted Ale kit, if he ’d chosen to let that one slide then he wouldn’t be able to stop a competing brewery calling its IPA Two Hearted Ale. If you don’t defend your trademark against every infringement, it becomes worthless.

That said, it’s sad for the legions of drinkers who opt for craft beer not just for the flavor, but because they respect the ethos behind the product. In fact, some craft drinkers refuse to buy beer from the large corporate brewers even if it tastes good, because they want to support the little guys instead. The little guys are increasingly acting more like the big guys.

I suppose this all stems from the changing nature of the industry. The number of breweries in the United States has more than doubled in the last decade. And craft brewers’ market share has also doubled in that time. They’re still just at 5 percent of the entire beer market, but competition is really ramping up between craft brewers, where previously they mainly saw each other as comrades in a battle against mass-produced light lagers. You’ll still find plenty of craft brewers subscribing to the “craft brotherhood vs. big beer” mindset (a significant majority of them, I’d wager), but cracks in that solidarity are beginning to show.

I believe we may be on the cusp of seeing a very different craft beer industry in this country. As the largest craft brewers continue to grow and more of them either consolidate or are purchased  by larger breweries, the line between “craft brewer” and “big brewer” will continue to blur (as I have argued previously in this column). I don’t have a problem with this, but some of the more zealous advocates of drinking exclusively craft beer may find it harder and harder to determine what meets their standards.

“Hopped Up” is a weekly brew review by Danner Kline, founder of Free the Hops and co-organizer of the annual 50% Magic Off City Brewfest. Send your feedback to danner@freethehops.org