We keep talking about how our beloved craft beer is growing up, and here’s another good example of the industry’s rapid evolution.
Bell’s Brewery (one of my favorite brewers) has sent a cease and desist letter to Northern Brewer (my favorite home brew supplier). Bell’s is trying to protect their trademark for Two Hearted Ale (one of my favorite beers) by making Northern Brewer rename a home brew clone they offer called Three Hearted Ale (which I happened to have purchased the other day).
So basically, this is all about me. 🙂 Okay, maybe it’s not, but some craft beer fans and home brewers seem to be taking it personally.
I came across this story by way of the always delightful Sarah Huska’s Facebook page, and a few of the comments there are telling. Basically, some folks are saying, “Why send a legal letter? why didn’t Bell’s just call ’em up and say knock it off?”
I originally had a screen cap of the extract kit but didn't want to hear about it from you all-grain brewers!
Having been in the brand world for more than a couple of years, the answer is simple – because Bell’s needs a paper trail showing that they are defending their trademark. This way Bell’s has evidence that they have been actively defending it if an issue (with anyone, not just Northern Brewer) comes up in the future. It gives them strong legal footing. It’s pretty standard, and as Larry Bell points out on his blog, the move was all business and nothing personal.
While Northern Brewer’s Facebook page shows they seem to understand this, the calculated nature of this business-before-buddies move seems to have some people put off. I think many of us see the craft beer industry as a handshake-deal kind of community, where brewers collaborate and most everyone gets along. Fa-la-la-la-la. In such a world, a cease and desist letter instead of a friendly phone call might seem harsh.
But the craft beer industry is growing so fast, it might no longer be that kind of world. Breweries are investing time, money and creativity into developing intellectual property, and the stakes continue to rise as the industry continues to expand. Following legal best practices is a logical next step as brands become more valuable.
Last year such matters might have been handled with a friendly phone call (I have one example in mind that I can’t share), but the recent legal action taken by Bell’s doesn’t show they’re mean old coots – it shows they have enough foresight to see where this whole thing is headed. While this might not sit well with some craft beer fans, I expect this to become the norm as breweries grow and their trademarks build equity.
Brewers will continue to be friendly with one another and produce products we love, but as the game changes, the ones who don’t protect what’s theirs (exactly like Mr. Bell is doing) might wind up paying dearly. Expect the breweries that have not been aggressively protecting their assets to begin doing so.
In other words, the lawyers have arrived and won’t be leaving any time soon. Welcome to craft beer 2.0.
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Beer & Whiskey Brothers 
We talked about this on our last podcast and I’m firmly in Bell’s corner. Anyone who has a problem with it is clearly uneducated in the matter. It’s the law, pure and simple. I know all want to think that the craft beer world is some utopia where everybody just holds hands and loves each other but they’re a business first. They have obligations.
I have more of a problem with Northern Brewer for making this public. To me, they’re the ones who have questionable intentions based off their actions.
If you look at Northern Brewer’s Facebook page, you’ll see they seem to regret making a big deal of it. I think they were in utopia-mode and spoke before they got a real-world understanding of how this stuff works.
I think making it public will help their customers stay informed on the name change. Plus, it gets the word out that they have a pretty good Two-Hearted clone.
+100 Rupies for all three of you. I think Northern Brewer just increased their business quite a bit and probably got a few peeps that follow craft beer interested in homebrewing.
I don’t fault NB for making it pseudo public. I think their intentions were honest and they were caught off guard by their customers’ uprising. They followed the initial post very quickly with their support of Bell’s and asking people to calm down about the whole thing.
I think it also shows that home brewers don’t like lawyers much.
Good post, glad you can step above the fray. I find it a tad comical that businesses like NB (and others in similar situations that we know about) choose to air their legal laundry for the world to see. I can’t help but feel like it’s a new sort of marketing ploy (you don’t think NB sold more kits this week) after seeing the rallying cry around Rock Art. I think small businesses are choosing to market to our emotions and divide loyalty (little guy vs. the littler guy, in this case). I know of several small brewers that have been served with a cease & desist that have dealt with the issue quietly and quickly – because a C&D isn’t a big deal in most cases.
Check out the Legal Libations blog that touches on the issues surrounding trademark issues, it’s a pretty good read.
http://www.legallibations.com/2009/10/fighting-monster.html
For the record, I bought my Three Hearted Kit on the 22nd, a day before the fray got my attention, so I’m not a joiner! I’ve brewed it once and it’s blossomed into a good beer – needed more for the summer.
Perhaps NB was going for the Rock Art sympathy vote, but more likely they felt legally bullied by Bell’s, and they popped off about it on Facebook. A day later, NB seems very contrite, and I think the legal realities of the industry have become clear to them.
Yeah, that was sort of my point – they felt bullied and quickly posted their hurt feelings, only to back off a day later when cooler heads prevailed. Brewers & small businesses associated with the industry need to step back, talk with their lawyers and deal with these things in a way that doesn’t pin people’s emotions. Respond, don’t react. This isn’t a big deal, NB has moved to make things smooth and Bell’s is still making good beer and doing much to support the homebrew community. If anything I think it puts a bit of pressure on homebrew shops to work with brewers in developing kits & recipes, open the door early to see how it can be marketed – hopefully avoid BS like this in the future.
Agreed. If they’re not doing so already, I expect other breweries to start protecting their trademarks more aggressively because of the attention this has received.
But mostly it makes me thirsty for Two Hearted!!
Bell was gone from Chicago because they couldn’t get out of a bad distribution deal here. Damn contracts. So they went and bought Kalamazoo Brewing and marketed under that name with a different distributor http://www.beerscribe.com/2007/11/30/bells-beer-back-in-chicago-distributors-lawyers-smile/. Now they must of settled because Bells is back in Chicago. I’d say Larry Bell is pretty legal savy.
I didn’t know abut that, but it shows the man knows how to navigate the legal landscape.
Perhaps he’s something of a legal pioneer in the industry.
Damn it Jim. Do your Homework! Don would have. I’m just saying….
Oh, we all know that’s not true!!
I hate when company’s “protect their brand” from people that aren’t hurting it.
My next home brew will be named 2 Harted Ale. After my love for Corey Hart. Can’t wait to make it into a kit and share the recipe with everyone.
I’d show my love with a Sunglasses at Night stout!
The issue really isn’t about Northern Brewer – Bell’s agrees that there’s little harm in them having the Three Hearted Kit. The larger issue is trademark protection. If another brewer created a “Single Hearted Ale” and made it look like a Bell’s product, Bell’s might have trouble stopping them because the other brewery could point to the Northern Brewer kit and say “Bell’s hasn’t been protecting their “Hearted Ale” trademark in the beer space, so we think we have as much right to it as they do.” Such things happen.
If Bell’s needs the paper trail in order to protect them in the future from people who will do them harm. It’s a little sad to see such maneuvering in the craft beer community, but it’s the new reality.
All that said, lemme know where I can pick up your kit when you’re done! 🙂
This is an interesting story considering the sentiment was reversed twenty years ago when Bell’s (then just a regional microbrewery and homebrew store) was sent a cease and desist letter from a Mexican brewery over Bell’s use of the trademark “Solsun.” Bell’s change of labels to “Oberon” is now a historical moment for Michigan beer. We can only hope Northern Brewery experiences such success in the next 20 years after their recent moment of legal education.
Agreed – I love both entities here and wish them both the best moving forward. I think NB got schooled a bit and are smart enough to take the lesson and use it. They already have their Pro Series beers, developed by Surly and Town Hall: http://www.northernbrewer.com/brewing/recipe-kits/pro-series
If some a-hole sells the Four Roses oak chips I’m sending him, my lawyer will be calling.
No chance in that happening!! 🙂
I encourage you all to check out my new website, http://beerandwhiskeybro.com . It’s just a site where I copy and past everything you all say and then claim it as my own.
You kid, but that’s happened more than once to us. I love doing a whois lookup, getting their contact info and making that phone call.
I understand that they want a paper trail and it logically makes sense to protect their brand. However, another brewery making a product and naming it something similar would be a different story. Northern brewer does not sell a similar product, they sell a combination of grains, hops, and yeast with instructions.
I am glad both parties have been mature about it but I think it is a little misguided. I think Bell’s would still be able to protect their brand if another brewer made a beer and named it “One-hearted ale” and put a fish on the label. I just don’t see a need to set a legal precedence in a situation like this.
Full disclosure: I love Bell’s and I know nothing about copyright law.
to me, it might increase sales in Bells 2 Hearted…because I knew if I made a clone of it, I’d want to do a side by side tasting of them both. Also, lets say I give my friend a beer and he says “Damn, where can I get this”, then he/she might go out and buy a 6 pack of Bells Hopslam.
Isn’t this why labels have to be pre-approved before you can go about naming beers, to make sure their not already taking (see also: 3+ beers which were named Hoptimus Prime)
Yes, there’s trademark searches before products are green lit (usually), but it’s the gray areas that can bite you in the butt. Bell’s action has made these areas smaller and less of a threat in the future.
You might not see homebrew and probrewed (just made that up!) beer as being the same thing, but I’m confident that a court of law would see a distinction without difference.
Not defending their “Hearted Ale” trademark in the beer space would have put Bell’s in a weakened position in the future. They had to do what they did, even if it seems silly. Most law is silly (or downright stoopid).
I sort of liked the route Avery and Russian River took with their Collaboration not Litigation Ale. NB has been collaborating with Surly and other breweries as of late. I’m not sure why they couldn’t work something out with Bell’s.
I think NB might still work something out with Bell’s. At this point a branded collaboration would be a homerun for both of them and a smart way of capitalizing on the attention the legal action has gotten.
I think it’s a no-brainer.
That would be an ideal solution, but not everyone is so amenable. Recently a similar dispute came up between Dry Dock brewing in Aurora CO and 7 Seas Brewing in Washington. Dry Dock makes an excellent IPA called 7 Seas so 7 Seas Brewing lawyered up after finding out about it. And they weren’t interested in collaborating, either. Dry Dock is complying, but they considered renaming their beer to “7 Cease and Desist” before settling on the generic Dry Dock Double IPA.
Here’s a link to the story: http://blogs.westword.com/cafesociety/2011/03/dry_dock_brewing_changes_the_n.php.
Interesting story, and one that happens all the time.
I still think Bell’s and NB might choose to play nice together because they are in complementary businesses, not direct competition like Dry Dock and 7 Seas.
Plus it’s crazy to name a product without first doing a trademark search. Maybe beer names aren’t registered?
Or how about just a Google search?
Yeah, that probably could have saved the headache.
It’s a little murky, I think. I’m still unsure how a beer named “Seven Seas” infringes on a whole brewery called “7 Seas” that doesn’t even make a beer with the same name. I guess that’s what lawyers are for.
It’s a pity, because “Seven Seas Double IPA” was a nice play on words. It uses 7 types of hops that begin with the letter C. Get it?
I hear what you are saying and I agree that it sounds picky, but they are both beers that have a variation of “7 Seas” on the label, which is way too close for comfort when it comes to trademark law.
Do you think McDonalds would do nothing if Applebee’s introduced the “The Mack” burger? Even if it was an ode to the 1973 classic pimp film ( http://www.imdb.com/title/tt0070350/ ), it’s a burger, and McDonalds would HAVE to go after them or it would diminish their ability to stop others from doing the same in the future.
Well now you’ve got me thinking about what kind of prizes would come with a “The Mack” kid’s meal.
Anyhow, I do understand the motivation behind this, but it still seems kind of silly at this point since you can only get Dry Dock or 7 Seas in the states where they are brewed. They aren’t in direct competition . . . yet.
It’s the precedent that matters.
It’s like letting a neighbor build a shed on part of your property and saying nothing about it. When the guy on the other side does the same, he has the “you let the other guy do it” defense on his side. I’m not sure how this works with property law (might be a bad example), but with trademarks stuff like that matters.
Even if they’re not in direct competition (yet), letting them use the name without challenging it weakens your rights to the name in the future.
Oh, for the Happy Meal, girls get large hoop earrings and press-on jail tattoos, and boys get platform shoes with goldfish in the heels.
🙂 Yeah, I get the whole precedent thing, but that doesn’t mean I have to like it!
BTW, if you come out to GABF this year, be sure to try the “Beer Formerly Known as Seven Seas.” I’ll even buy you a pint. It’s awesome.
That’s a deal!
Yes, the first kits you see when you walk into NB in St. Paul MN are the Surly ‘Pro-series’ kits. Funny we didn’t see Surly and NB in litigation over NB’s Shirley Furioso?? Instead Surly ‘quietly’ worked with NB to create kits that claim to replicate the famous MN beer with the help of Surly itself! THAT’S how you do it. The Bells news is a bit of a turn off for me. Now, ask me how my Speckled Hiefer from NB turned out?
I’m down with the speckled heifer!!
I think a big part of the difference is that NB and Surly are both in the Minneapolis / St. Paul area, which probably made them more sensitive to what the locals would think. They could actually meet up for a beer, which always helps.
Bell’s is in Michigan, and I think the geographic distance helped to make this all business for them.
NB didn’t complain at all, they just said they were looking for a new name for their kit and readers easily figured it out. I agree Bell’s had to do it, but how about a phone call first, then the letter for the legal paper trail. Bell’s did come off like a bully and their statement reflects that as well. I bet they now wished that they had called and kept it more quiet.
I bet if NB was a brewer they might have gotten a courtesy call, but as a home brew supply store maybe Bell’s didn’t even think of it. Their paths probably don’t cross much, and when you know you’re going to be seeing someone in the future, you usually try to keep things civil. Just a hunch.
I like how Matt Nadeau handled is deal last year. I believe he ultimately made a phone call, talked it out and it was over.
We supported Rock Art 100% during the whole Monster/Vermonster thing, but it wasn’t a friendly phone call that settled matters.
Matt and Rene did everything they could to rev up public support for the brewery, framing it as a David vs. Goliath battle where a corporate giant who wasn’t in the beer business was bullying a poor little brewer who was just trying to make good beer and ride his Harley. Don and I helped as much as we could. The story took off, and Rock Art was able to battle back against Monster with the media watching and thousands of people rooting them on.
You were correct that “ultimately” it was the phone call that settled things, but it happened after Monster had an enormous PR disaster on its hands.
Matt had no other recourse and the action by Monster was unfair. In the case of NB, they created a product that was a clone of Bell’s product and named it too closely to the original. Bell’s was well within their rights to serve the C&D letter, but I agree an accompanying phone call would’ve been nice.
I think there’s a lot to be learned here by everyone involved and all of those watching as well.
BTW, I forgot to say thanks for posting and welcome to the blog.
You’re welcome. I remember the firestorm over Rock Art that’s why I said ultimately. That case may still be going on if not for the call. I’ve been enjoying their beers since day 0ne, great people.
can we get a link to the Rock Art thing…it’s one of my favorites when I go to VT.
Here’s our effort to help Rock Art: https://beerandwhiskeybros.com/2009/10/15/go-buy-a-rock-art-beer-or-three/
And here’s my review of the Vermonster, which Matt asked me to modify to remove all the “monster” references I had in the post so Monster’s lawyers couldn’t use it to show how brand confusion might occur: https://beerandwhiskeybros.com/2009/10/02/the-monster-of-morrisville/
I had the Vermonster on my epic Holiday beer tour of NH, VT, and MA. Rock Art has damn good beer, but even better is the price of the bombers.
Yeah, affordable and good, at least their bigger beers.
Someone in management at Bell’s should have given a courtesy call to Northern Brewer to outline a concern about the trademark. They could have followed up with a letter outlining the results of the discussion if they’re so concerned about defending Two Hearted with a paper trail in the future. Instead, they sent a cease and desist and this whole thing gets played out publicly. Larry’s blog justification of his company’s actions completely missed the mark of why many people were upset by this. There are many smaller brewers who understand how to treat other members of the beer community with respect- there’s no need for me to purchase any more Bell’s.
I hear you on the phone call thing. My guess is that Bell’s would have called another brewer if they had the issue, but perhaps they don’t see Northern Brewer as being in their circle, so they skipped the niceties. Doesn’t make it any better, but that’s my hypothesis.
And I wish I had the option to exercise my moral outrage like you do – I can’t even get Bell’s in NJ, so I can’t decide to not drink it!
Moral outrage is kinda my thing- http://aleheads.com/2011/03/23/un-official-aleheads-response-to-the-northern-brewer-situation/
Great site! Just subscribed. Your infographics section is awesome.
Thanks for subscribing. Guess we have to keep on writing now! 😉
Baby’s done all growed-up, alright!
Now Troeg’s is suing Bethlehem Brew Work’s (aka Fegley’s) over the competing Mad Elf versus Rude Elf seasonals. You’d think they’d be able to drive down Rt. 78 and just talk it out…
http://www.lehighvalleylive.com/bethlehem/index.ssf?/base/news-3/130111231941860.xml&coll=3
This state is only big enough for one elf!
Some quick thoughts:
1 – The issue most have with Bells isn’t the paper trail it’s that matter in which it was done. Gotta agree with Slouch Sixpack on this one.
2 – No. Brewers doesn’t regret making a big deal about this. Plenty of free advertising and they can call Three Hearts clone “Screw Bells Ale” or “Kiss My Ass Ale” and they’ll sell a ton of it.
3 – Bells probably regrets this as the “Hey, it’s just business” excuse doesn’t go over well in a era in US history where people are losing their jobs and hear “Hey, it’s just business” way too much.
BTW … Slouch Sixpack’s post on this made me laugh so hard I spewed Flying Fish Exit 9 through my nose … that’s the real tragedy here (but my sinuses have never been clearer).
Good points my furry friend. I agree that Slouch’s post was hilarious, but it’s a pity that it caused you to ejaculate Exit 9 from your nostrils!
A pity? Yes. But I may have invented a brew based home remedy for nasal congestion. I plan to market it as the “Offramp” 9 Neti Pot until I get a cease and desist order from Flying Fish claiming I violated their copyright on Exit 9.
I don’t think they care if you’re expectorating it through your nose as long as you’re buying the stuff!
If it makes you feel better Wookie, your nasal trauma story was the highlight of my week. Other than the opportunity to wildly overreact to this Goose Island acquisition, of course.
You, wildly overreacting? REALLY?!
I enjoyed Brother Barley’s take on the whole thing, especially the line “Farewell, Goose Island. Thanks for the memories. Tell the devil hello for us…and remind him that he’s too big to hide behind the little guy. We can still see his horns and his tail.”
http://aleheads.com/2011/03/29/the-warning-shot/
I am glad my woolly ass brought a little sunshine into your life this week. I live to give!
Yes, he’s quite the blowhard.