In the world of beer-related trademark infringement disputes, there’s no more frequent call to arms than David vs. Goliath.* The big boys have the “fancy lawyers” and engage in “corporate bullying” in an attempt to squash the little guy who is just trying to make good beer.
The latest in these fights is Magic Hat Brewing Co. and West Sixth Brewing Co. Magic Hat is the Goliath, originally formed in 1994 in Vermont and now owned by Cerveceria Costa Rica. West Sixth Brewing is the David, a Lexington, KY, craft brewery which began brewing in 2012.
Last year Magic Hat notified West Sixth that it believed West Sixth’s Brewery logo (particularly it’s Amber Ale packaging) infringed on Magic Hat’s #9 Not Quite Pale Ale logo. When discussions proved fruitless, Magic Hat sued and West Sixth took to social media last week to plead its case.
West Sixth’s initial post is an interesting read. There’s no corporate polishing which makes it rather delightful to take in. It’s snarky, colorful and leaves no doubt about the David vs. Goliath card. West Sixth also started a “www.nomoremagichat.com” site and asked fans to comment on Magic Hat’s website to “[let] them know what you think about their corporate bullying.”
But is it a smart move?
Based on West Sixth’s initial and subsequent posts and facebook comments, Magic Hat amended its lawsuit to add defamation claims. West Sixth responded, in part, with this:
Despite the public outrage over their heavy-handed tactics, they rejected our offer, now claiming that they are due additional damages because of the outrage you’ve expressed. They don’t seem to realize that you all are angry about their bullying lawsuit, not our Facebook posts!
That said, we do have some good news – because of the pressure you all applied, they’ve also agreed to go into a mediation session with a magistrate judge. This will likely happen over the next week or so.
It’s curious writing. You can bet the pressure applied by West Sixth’s fans is not why Magic Hat agreed to go to mediation. Such early mediation attempts are common in federal court (and required in many of Montana’s district courts and its Supreme Court).
The offer referenced in West Sixth’s comments was their offer, announced publicly, to make changes to their logo to help clear up any confusion:
On Wednesday morning, we accepted all 4 conditions and showed them 4 different new options for our logo. All they had to do was select one of them. But it’s been more than 24 hours, and we still haven’t had a response to our offer.
Except West Sixth did not accept all four conditions. They made one acceptance conditional on Magic Hat choosing one of four new logo versions West Sixth created. From an objective viewpoint, the changes were immaterial and did not address Magic Hat’s stated concerns. West Sixth had to know Magic Hat would not choose any of them, giving West Sixth the ability to further cast dispersion on Magic Hat’s actions.
Next, one of West Sixth’s co-founders took to Reddit to do a Q & A session on the matter to address “some misinformation going around.” No doubt he expected to encounter the same friendly crowd populating the Brewery’s facebook page. As you can read for yourself, that was far from the case.
Reddit, like all open social media sites, tends to have it’s collection of inflammatory idiots, we’ll call them. But the Q & A with West Sixth included some very direct, intelligent questions and actual conversation. The tougher questions seem to go unanswered by West Sixth, but two participants pointed out some interesting history.
On October 5, 2011, Louisville Beer ran an article about the then-forthcoming West Sixth Brewing Co. which included a graphic of the brewery’s logo. Two readers left comments noting how similar the logo was to Magic Hat’s. Last September, the same website ran an article about West Sixth’s IPA in which the author noted West Sixth’s “sleek can design . . . . reminds me slightly of Magic Hat #9′s logo.” The September article was actually a re-post of the author’s beer review originally published on Beer Advocate on May 22, 2012.
These are beer geeks – with out any prompting – pointing out the logos’ similarity well before the controversy began. The blog-o-sphere has been moderately abuzz with various takes on the issue, many asserting that only an idiot would find the logos similar. Yet the test isn’t whether a savvy beer geek pouring over the offerings at the local beer shop can pick out all the differences between West Sixth and Magic Hat’s logo. In other words, it isn’t as simple as asking whether you can spot the differences. Obviously we can:
The central factor in determining whether trademark infringement has occurred is “likelihood of confusion.” When the items at issue are directly competing products (like two beers), courts consider whether the two trademarks are sufficiently similar that one might expect consumer confusion to occur. Not beer geek consumers, but your average consumer on the street. Not by calling anyone who can’t distinguish between a 6 and a 9 an idiot, but whether the use of a similar logo might be confused as being from a source other than your own. Looking at the actual products above, might a casual consumer think Magic Hat came out with a new beer named #6?
Maybe, maybe not, but in applying that standard, it’s certainly not a slam dunk for either side. Which makes West Sixth’s snarky, colorful appeal to the public all the more curious.
In the legal world, you’d characterize West Sixth’s writing/comments as leading, argumentative, and begging the question. They assume facts not in evidence, we like to say. They are carefully written to convey a message. A message that unwavering supporters can rally around, but one that doesn’t entirely compute for more objective observers.
Mediation is a useful tool, but only once both parties stop being overly smug about their chances. Insular might be a good word for it. Facebook fan rallies don’t make for useful evidence in court.
I do understand how it feels to have someone tread on your intellectual property. I’ve had my logo stolen by others for commercial use, my pictures used to promote others’ products and whole paragraphs lifted and claimed as others’ writing. Given the work involved, I have a keen interest in protecting intellectual property rights.
I don’t get the impression West Sixth set out to take anyone’s intellectual property, but there were early warning signs that even beer geeks found similarities in the logos. Whether those similarities rise to the level of trademark infringement is left to mediation or the court to decide, but here’s guessing others will think twice about using such a public David and Goliath call to arms.
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* Incidentally, it isn’t always David versus Goliath. Sometimes its just David versus David. One local Missoula brewery planned on calling itself Hellgate Brewing Co. until another local brewery pointed out they’d trademarked the name. (The first use of “Hellgate” as a beer name in commerce was claimed to be 2003. The filing date of the trademark application was 2010 and the USPTO granted approval in June 2011. The date of the application coincided with the public announcement of the new brewery’s proposed name. Just curious, but has anyone seen/drank a beer named Hellgate in Missoula in, say, the past 10 years?)
