Last week, as the city of Philadelphia worked toward a fever pitch anticipating its hometown Eagles playing the New England Patriots in the Super Bowl, fervor among beer fans reached an equally insatiable level.
More than 15 hours of operation spread across a Saturday and Sunday, a three-barrel batch of Fly Eagles Fly-PA sold out at the Broken Goblet Brewing taproom, just more than 20 miles from the NFL team’s home stadium. The purposeful, not-quite-New-England-style IPA, featuring a "Tom Brady ego-sized amount" of Equinox hops, was a hit for the almost-four-year-old brewery. However, the beer’s logo, adorning a collection of take-home crowlers, was also a likely violation of trademark law, one of several examples from Philadelphia-area breweries (and even a coffee roaster) piggybacking off the NFL team's success.
Broken Goblet's beer was adorned with the Eagles' official name and a hand-drawn recreation of the team's namesake animal logo, half bird head, half hop cone. It flew along a very fine line between artistic license and breaking the law.
“We knew that certainly if [the Eagles or NFL] wanted to, they could come after us,” says Mike LaCouture, co-owner of Broken Goblet, which produced about 400 barrels of beer in 2017. “But we also knew that by the time they did, we would have sold out of the beer because we’re not putting it on store shelves. We’re filling crowlers or serving it at the bar.”
“Is that skirting the law and maybe shady?” LaCouture asked with a self-aware laugh. “It probably is.”
LaCouture is quick to point out the obvious: there was no ill intent from his or other local breweries utilizing excitement around the Eagles’ Super Bowl run. Similarly, Mount Holly's Village Idiot Brewery had been serving a Hefeweizen using the last name of the Eagles' two quarterbacks, Carson Wentz (Wentzstefaner) and Nick Foles (Folestephaner). Both instances were, quite simply, branding that was earnestly meant to show a fun, local connection and pride in a hometown team.
But there’s still a very real possibility that the move could come back to bite them.
“From a strictly practical standpoint, it’s harder—or less likely—to receive a cease and desist, and especially a lawsuit, for a product that’s only sold once,” says Brendan Palfreyman, who specializes in brewery trademarks as an attorney at Syracuse, New York's Harris Beach PLLC. “But I still don’t recommend taking the risk, even if it isn’t going to be high. Some major companies have enormous legal budgets, so it’s not as much an issue for them and they have set aside money for exactly this purpose.”
LaCoutre never heard from the Eagles’ franchise regarding his IPA, but he also took specific steps to avoid potential issues. While the team’s name looked the same as what you’d find on officially-licensed merchandise, the bird’s head was redrawn by hand, facing a different direction, and made half-hop. This, combined with the one-off, small-batch nature of the release, made him feel more comfortable about the decision of utilizing the team’s likeness.
“I know I’m taking advantage of a city in an absolute froth that we’re in the Super Bowl, but am I the only one doing it?” LaCoutre asked rhetorically, “Absolutely not.”
He’s also acutely aware of issues surrounding trademark or copyright infringement. A former beer, Samurai ChaiPA, was renamed Chai By the Sword after receiving a C&D letter from Great Divide, who sells Samurai Blonde Ale. More severely, before opening, the business’ name was changed from Brewtal to Broken Goblet after another brewery threatened a lawsuit because it had trademarked “Brutal” for use in a beer’s name.
Ths isn’t merely contained to beer, of course. Candy maker Wrigley recently filed its second lawsuit in six months against flavored vaping liquids, most recently by a Florida company selling "Pink Starburst" and "Skeetlez." Wrigley claimed "misappropriation" of its brands. There’s even a streetwear company, Freshjive, that repurposes branding and logos from companies like Tide, 7-11, Crayola, and more.
As more breweries open every day, beer makers struggle to find a balance between simple names based on style (Stone IPA, for example), coming up with something new, and avoiding names that are already taken. On top of that, more creative brewers out there may want to utilize psychological connections consumers have with other companies or products.
There’s a middle ground, too. Eric Ruta found it with Magnify Brewing’s Frosted Flakes Double IPA, a name certain to be recognizable thanks to the popular Kellogg's cereal. Described on its label as a "Breakfast India Pale Ale," the artwork depicts a bowl of flakes with a blue background, slyly similar to what shoppers would find in a grocery aisle.
It’s also all on the level. “Kellogg’s Frosted Flakes” and “Tony the Tiger” are trademarked, but not the two-word name itself, which is why it adorns all sorts of generic cereal packaging in supermarkets around the country.
“We’re very cognizant of what could happen, which is why we work with a trademark lawyer to look into it,” says Ruta, founder and president of Magnify. “Ultimately, a one-off might not matter, but we’re just doing our due diligence.”
A 20-barrel batch of Frosted Flakes sold out in just two days at the brewery in December.
“Doing this, it lets people relive some of their favorite pastimes and good memories,” Ruta says. “On Instagram, we saw a bunch of people fill a bowl of Frosted Flakes with our Frosted Flakes, which I guess was kind of a waste of the beer, but cool to see.”
Ruta previously went through the vetting process for a collaboration between Magnify and Søle Artisan Ales, Keep It Mello IPA, which includes marshmallow fluff in its recipe. That beer was almost named Get Puffed, a play-on phrase based off Kraft’s Jet-Puffed Marshmallow Creme, but went in another direction to avoid infringement. The label includes similar colors and appearance of Magnify and Søle’s names like Kraft’s logo. Ruta’s lawyer gave the OK to Keep It Mello because, while it may have toed a line, it didn’t cross it.
Among the examples Ruta says makes him more aware of the need for breweries to self-police and be careful, he points to recent cease and desist sent to Minneapolis' Modist Brewing, which made Dilly Dilly Double IPA in December, referencing a phrase at the center of Bud Light's latest foray into pop culture lexicon. Anheuser-Busch InBev sent a man dressed as a town crier to deliver a tongue-in-cheek verbal note to not produce the beer again.
“‘Dilly Dilly,’ is the motto of our realm, so we humbly ask you keep this to a limited-edition, one-time-only run,” the costumed man announced.
Even in situations where no legal action takes place, some still point out there is plenty of reason to avoid the worry all together. April Besl, a partner and member of the Trademarks Group in the Intellectual Property Department of the law firm Dinsmore & Shohl LLP, said that any situation where a brewery is drawing a direct connection between original work and their own label or names runs a risk. The creation might entice a consumer to be interested in one beer among hundreds to choose from, but Basl also gives an analogy of waking a sleeping giant.
It’s difficult for some examples to be considered parody—which would be allowed under law—when it’s unclear if a beer’s artwork or name is actually making a comment or critique about something, Basl said. Which is to say: a beer’s artwork must spoof the original inspiration in some way and be different enough to be clear for the consumer there is absolutely no connection between the two. In many cases, though, breweries are just pulling directly from an original source.
One example was a collaboration beer between The Veil Brewing and Trillium Brewing called Extra Kreme. Cans for the beer were done in the same color and font as Dunkin' Donuts, including a direct play on the fast food store’s slogan, “America runs on Dunkin’.” In the same font, the beer can said “Virginia runs on DIPA,” referencing The Veil’s home state. Extra Kreme received a cease and desist within a week of its debut.
“We often use artistic interpretation in our can designs in a lighthearted way,” The Veil wrote in a subsequent Facebook post. “In an effort to avoid conflict with existing brands we have agreed to take down images and advertisements related to Extra Kreme.”
Another example from the same brewery was The Veil’s Broz Broz Night Night, which features drawn interpretations of child characters from Netflix's Stranger Things. The branding also showed the beer’s name flipped vertically, referencing the show's "upside down" dimension, where alien villains originate.
“If those rise to the level of potentially reaching the actual persona of the individuals on the can, those actors or children then have an issue for right of publicity claim,” Basl says, noting that a potential lawsuit could be brought for benefiting off their likeness.
Added Candace Moon, a partner and member of the Corporate Department at Dinsmore & Shohl: “I’ve had clients ask me about this strategy, and I can see the appeal, but I wouldn’t hit up any one person or company more than once. These are generally one-offs and sold in one day, so by the time they might get a cease and desist, the beer is gone and it’s over.”
Of course, one easy solution to avoid these challenges is to not step into the fray at all, and that’s become something of a recent mantra for Joel Kodner, head brewer at West Palm Brewery & Wine Vault. In recent weeks, Kodner points to breweries using the likeness of celebrities for their benefit, including Angela Lansbury, Carrie Fisher, and Barry Bonds. He's found beers using characters from the Street Fighter video games and the Masters of the Universe cartoon series. As someone who has to create ideas for his own beers, he doesn’t appreciate the way some have been utilizing pop culture references as a way to sell beer.
“It wasn't long ago two breweries would go at it over similar beer names, but now they're perfectly OK with using outside-industry [intellectual property] without permission,” he says. “We've gone from inspiration, homage, or sampling, to straight-up stealing instrumentals.”
Kodner admits that he has no interest in taking the fun out of beer, and the core of his complaints are simple: he doesn’t want to see anyone get sued. “But it’s going to happen,” he adds.
At his own brewery, finding personal ways to have fun with names doesn’t just make it exciting for a customer, but staff as well. He recently named a Pale Ale “1-Star Dougie,” thanks to a customer who left the business’ first one-star review on Yelp. And he released Unfashionable Oatmeal Brown Ale to poke fun at a a New York Times story that used the word “unfashionable” to describe Brown Ales.
“I'm not the label police and I'm no expert in IP law,” Kodner says. “I do know nothing's worse than settling for a boring name or label because you're afraid to take risks. But your next New England IPA can release probably shouldn't feature Tony the Tiger high-fiving Meryl Streep in the Apple Store.”
In terms of use, these practices may include some ethical gray areas and, ultimately, individual businesses can take legal risks as they please. But Basl and Moon particularly emphasized that breweries shouldn’t make using other’s property, visuals, or likeness a regular practice. A one-time joke may fly under the radar, but weekly releases that could violate trademark or copyright can quickly become a serious problem.
“It’s about finding that middle ground of making your point, but not quite as blatantly to piss somebody off,” Moon says. “If you wanted to do it one time, you get the one for free, but if it’s a repeated pattern of behavior, then these big companies will start to look for it and not be as forgiving.”
“You’re no longer David and Goliath if you keep poking Goliath in the eye,” Besl adds.
“Then you’re just an asshole,” Moon says with a chuckle.
Connor Casey is not an asshole. He’s gone to great lengths to keep his labels original, having them designed by a friend for the past two years. He did, however, have a bad case of luck in a recent run-in with Big Lots, a national retail company, and his San Francisco brewery, Cellarmaker Brewing Co.
In early January, Cellarmaker released a one-off Big Lots IPA in collaboration with Alvarado Street Brewery, its label artwork a parody of a typical ad created by the chain store. “Lowest prices of the year while they last,” a callout on the can read. The beer’s name used a similar look to the retail company’s logo, bolding “BIG,” but both words were italicized and in different font. On the can, its label advertised actual specialty items that were sold at the brewery as part of the beer’s release. Casey ordered customized toasters ($49.99), umbrellas ($23.99), aprons ($12.99), and other household items with the phrase “burp hops to your dome” imprinted on them, a hybrid of slogans used by the two breweries.
Cellarmaker got a cease and desist.
The beer was a one-time collaboration, so there’s no lingering threat, but it did highlight the creative process Casey and his team actively use when creating beer names or artwork.
Packaged releases from the brewery fall into what are essentially two categories: styles with a short shelf life and more reoccuring release days (typically IPAs) and 750-ML bottles of wild/sour and Belgian-inspired beers that are less common among retail releases. Cellarmaker’s philosophy has split the two. Canned IPAs get fun and light names and artwork, while bottled sours are adorned with artistic and photographed renderings to make them more special aesthetically.
The Big Lots example was part of the former, poking fun at similar Cellarmaker beers that use puns and parody imagery, like Dank Williams and Highway to the Danker Zone, referencing the musician Hank Williams and Top Gun theme song, respectively.
“The consumer is demanding a constant rotation of beers and you’re playing the name game every time,” says Casey. “I think you’re seeing some wacky names and ideas from breweries because it’s crowded out there.”
This is something Broken Goblet’s LaCouture is particularly mindful of as his business expands into a new production space this spring. His beers are near-exclusively sold at the taproom right now, which offers a level of comfort to market his Fly Eagles Fly-PA or a series of specialty beers named after characters from J. R. R. Tolkien’s Lord of the Rings. These beers are a limited run, feature redrawn artwork inspired by original properties, and aren’t found on store shelves. When he triples brewing capacity and has more opportunity to distribute his product, these beers will still stay small and still never leave the brewery.
“Somebody owns the rights to those character names and it’s not me,” LaCouture says. “But that’s also not a beer I’m putting a barcode on and putting on a shelf. I can sell 200 bottles out of the taproom and nobody’s going to come after a brewery of our size.”
The lingering lesson for his own brewery and thousands of others around the country, LaCouture notes, is the fact that since conversations around trademark or copyright issues are happening more regularly, it indicates a broader problem.
“The business of brewing is no longer all about the liquid,” he says. “It’s just as much about public perception, marketing, branding, and clever, attention-grabbing things as much as about how good a beer can be. There are so many of us. The path forward for most breweries is you need to keep an eye on both.”
—Bryan Roth