You’re not imagining it: The last couple years have been particularly litigious ones in the brewing industry. An uptick in high-profile trademark, intellectual property, and First Amendment cases has drawn not only increased public attention in outlets including CNN, USA Today, and People. but an influx of lawyers who see beer as a worthy—and lucrative—professional sphere. As more breweries open and alcohol categories converge, experts say such legal wrangling will likely continue to heat up.
But while protecting a company’s marks and resources is smart business, increased litigation is drawing the public’s eye toward the industry in a way that may not always be favorable.
In 2022 alone, there have been several headline-grabbing cases:
Chief among them was Stone Brewing’s trademark lawsuit against Molson Coors Beverage Co.’s Keystone brand for the use of “Stone,” which slowly unspooled over the course of four years before a jury found in Stone’s favor in March.
Just a month later, Stone again found itself in the news defending against a trademark lawsuit filed by Sycamore Brewing regarding the phrase “Keep It Juicy”—a case that both parties agreed to drop in May.
In June, another long-standing dispute was finally put to rest when a judge ruled in favor of Anheuser-Busch InBev and ended the “corntroversy” case that began three years ago.
But not all is resolved: Two of the largest beer companies in the U.S. are still fighting a trademark lawsuit over Corona Hard Seltzer.
“There are a lot more [lawyers doing what I do],” says Candace Moon of The Craft Beer Attorney, APC. Moon has primarily handled brewery clients for 13 years. “There are more breweries, and there’s a need.”
It’s evidence that beer has matured into a more competitive industry than it’s ever been. The number of U.S. breweries grows to historic highs every year, offering more reasons than ever to register and protect one’s trademarks, intellectual property, and First Amendment rights. (There were 9,247 in operation at the end of 2021 according to the Brewers Association, nearly four times the amount compared to a decade prior.)
“As more breweries come online, they’re each making 10 different beers, there’s going to be more overlap,” says Brendan Palfreyman, a partner at Harris Beach who specializes in intellectual property in the beer and cannabis industries. “As things get more crowded, there are more people bumping into each other.”
And as once-upstart craft breweries become larger, established companies, they have the financial resources to take such disputes to court—and to see the cases through for years.
It’s logical that a larger number of breweries would require a larger number of attorneys serving them. Increased volume on both accounts has the potential to create more beer-related lawsuits. But that doesn’t entirely explain what feels like a boom in recent legal filings related to trademarks and intellectual property, Moon says.
“You do have to police your own mark,” she says. (Courts typically see prior defense of a company’s trademark as protection against future infringement.) “But in my early days in the industry, people were a lot more willing to settle [out of court]. Some new people in the industry now are not as craft-oriented—they don’t have the craft mentality of ‘a rising tide lifts all boats,’ or ‘let’s all work together.’”
A decade ago, the out-of-court settlement made sense for a small brewery, allowing them to save money or risk looking confrontational in the eyes of the public. Craft beer then promoted itself as—and was largely viewed by the public—as a cooperative, collaborative industry. Breaking ranks with a headline-grabbing lawsuit against another brewery would have risked tarnishing this perception.
“As the industry becomes more mature, you’re going to get fewer people reaching out informally to one another, and more ‘my attorney will call your attorney’ type of situations,” Palfreyman says.
But better-established breweries today can afford to take a trademark or intellectual property case to court, in both the financial and public-relations sense. According to Brewers Association data, there were 88 “regional breweries" operating in 2011, a number that had risen to 223 in 2021, meaning more breweries covering a larger footprint of sales, and presumably, more money available to spend on legal fees.
Moon points to Stone’s lawsuit against Molson Coors as an example of a case Stone was eager to publicize; in 2019, Stone’s co-founder Greg Koch directly invoked the public’s help to “keep #TrueStonevsKeystone on your mind, and true Stone in your fridge.” Sometimes a lawsuit is a calculated business decision. Other times, Moon says, it’s an emotional or moral argument that a brewery owner doesn’t want to concede. Either way, if the brewery can afford to, it’ll fight the issue in court.
“People have more money, so people are willing to spend the money,” she says.
Palfreyman says trademark cases require a particular brand of financial calculus, because courts are less likely to award monetary damages to the victor in those cases versus other types of intellectual property lawsuits such as copyright and patent. Even if a plaintiff wins, the court may only put in place an injunction—not financially compensate the brewery whose trademark has been violated.
He says merely filing a simple lawsuit can cost $3,000-$5,000. If the suit moves to the discovery and deposition phase, “it gets extremely expensive,” he says, noting that Stone and Molson Coors incurred millions in legal fees during their lawsuit.
Beer is also uniquely positioned to generate trademark, intellectual property, and even First Amendment cases compared to some other industries. While cereal or sports drink companies may rely on cartoon characters or celebrity endorsements for marketing boosts, beer makers (and even ancillary companies like glassware artists) are consistently searching for a marketing edge via visual cues that sometimes pull from other brands or industries. That’s because trademarks and intellectual property are especially critical in a sphere with more than 9,000 operating breweries, all competing with relatively similar products. With tens of thousands of IPAs for sale nationally, marketing matters.
“It’s strange how much alcohol companies have a persona to them,” says Marc Randazza, managing partner of Randazza Legal Group. “Craft breweries are what you could call a vanguard industry. A lot of craft breweries have a brand mission that’s aside from beer.”
Randazza recently represented Sycamore in its case against Stone, and represented Flying Dog in a multiyear case against the North Carolina Alcoholic Beverage Commission (NC ABC). Flying Dog sued the NC ABC in 2021 after the commission denied it the right to sell its Freezin’ Season Winter Ale—the label for which features a cartoon of a naked man—on the grounds that it was in “bad taste.” In May, Flying Dog won the lawsuit when a judge ruled that bad taste was not enough for a government to deny the brewery its freedom of commercial speech.
In this instance, Flying Dog not only had a commercial interest in pursuing this lawsuit, but the defense of free speech has long been critical to the brewery’s image and brand. Raleigh newspaper News & Observer described Flying Dog as “a vocal opponent of censorship” in its coverage of the trial. The brewery has initiated lawsuits on First Amendment grounds in the past, including waging a nearly six-years-long legal battle against the Michigan Liquor Control Commission.
Flying Dog stated in 2016 that it would use the damages it was awarded from its Michigan Liquor Control Commission Lawsuit to establish the 1st Amendment Society, a group that would “advocate and educate on the First Amendment and organize events that promote the arts, journalism and civil liberties.”
The brewery then promised a series of taproom discussions about banned books as well as a stand-alone website and further programming; it appears to have hosted such discussions in 2016 and 2021. No website for the group could be found.
In 2017, Flying Dog ended its membership in the Brewers Association trade group, stating that the group’s amended Marketing and Advertising Code—the goal of which is that “beer advertising shall portray beer in a socially responsible and respectful way”—amounted to censorship.
“Flying Dog is a First Amendment litigation company that sells beer,” Randazza jokes. “They have that credo and that mission.”
Ditto Sycamore, a company that has courted controversy in the past with a hard seltzer called “Fuck 2020 Bubs” and a Christmas Cookie Winter Ale that depicted reindeer having sex. The regulatory crackdown and ensuing headlines aren’t a byproduct of the beers’ labels—they’re part of the point. Even Stone’s trademark lawsuit against Molson Coors allowed it to play its favorite role: the feisty, small firebrands taking on beer’s biggest companies. (Stone could afford to pay its lawyers a reported $370-$920 per hour, meanwhile.) Stone in effect created the public conversation around the lawsuit, sending a 2018 video featuring Koch to journalists as a way to announce the case, then continued to highlight the legal battle.
“It’s free advertising, more stuff to put on social media,” Moon says of Stone’s lawsuit. “When Stone first published that lawsuit, Greg [Koch] was all over social media pushing their side of it. … I actually thought it might be more PR than anything else.”
But the media attention that a trademark or First Amendment lawsuit brings is expensive, and is not always positive.
For Flying Dog and Sycamore, trademark and First Amendment lawsuits have brought them into a business relationship with Randazza, a man who previously represented InfoWars’ Alex Jones, the main disseminator of Sandy Hook denial. Jones pushed conspiracy theories that the elementary school shooting that killed 27 people, including 20 children, never happened, and instead was “completely fake with actors.” Randazza also previously represented Andrew Anglin, founder of the neo-Nazi Daily Stormer website.
Randazza defends his work with these clients on the basis of staunchly defending the First Amendment.
“I don’t have to agree with what my client has to say, I just have to agree that if my client can’t say it, then neither can any of us,” Randazza says.
In a 2018 profile for HuffPost, journalist Luke O’Brien describes Randazza as a disgraced former lawyer for the porn industry who has “left a trail of bad blood and trampled ethics behind him.” In 2018, Randazza was given “a stayed suspension and probation, plus a small fine and 20 hours of education in legal ethics” by the Nevada Bar following complaints about conflicts of interest, bribery, misrepresentation of fees, and more.
Sycamore and Flying Dog declined to comment on their work relationship with Randazza. Randazza says Michael Boyer, a lawyer he’d previously worked with on the Flying Dog case, invited him to join the Sycamore trademark lawsuit against Stone. And to hear Randazza tell it, these breweries didn’t bat an eye at his past clients or ethics violations. He says Sycamore took “45 seconds” before deciding to work with him.
But it’s not as though at least some members of the public and the media haven’t noticed Randazza’s involvement. He was the subject of a podcast interview with Beer Business Daily’s BeerNet Radio and the recent focus in Fingers, a newsletter about drinking and culture.
“Randazza is a politically charged figure with an unusual amount of easily googleable baggage,” writes Dave Infante for Fingers. “What is he doing representing a fast-growing but otherwise unremarkable and seemingly apolitical regional craft brewery in a routine trademark dispute?”
Randazza may raise eyebrows, but he doesn’t see anything unusual about a First Amendment and trademark lawyer getting more involved in beer. (He says he’s not currently involved in any other beer-related cases that he can speak about, but that he “loves” working in this field.)
“It all fits in with the general tenor of being ‘lawyers to the sin industry,’ whether it’s alcohol, weed, porn, firearms,” Randazza says, noting that he’s also active in cases related to cannabis and psilocybin, a hallucinogenic. “Craft beer is a great vehicle to deliver a message.”It’s an open question whether Randazza is helping or hurting the image of the breweries and industry he’s fighting for. Some breweries like Stone and Flying Dog have built their brands on pushing the envelope. But craft beer overall has long cultivated a community-centric, generally family-friend image that’s perhaps at odds with a lawyer who defends neo-Nazis and, during our interview, said craft beer was “just like the porn industry.”But thus is the double-edged sword of high-profile lawsuits: They’ll likely earn a brewery publicity, but there’s no guarantee that will be positive—or worth the expense. Moon cautions breweries not to pick legal battles they don’t absolutely have to.
“I’ll give advice like, ‘I don’t recommend pursuing something,’ and depending on the client, they’ll do it anyway,” she says. “And there are some attorneys out there who want to make the money.”
Words by Kate Bernot