Have you seen this yet?

Ignore the interesting syllabic presentation. It’s not quite news anymore in the craft beer world that the Brewers Association recently created this seal so that members can use it on their marketing and products.  So what does this seal mean?  Why is it significant?

According to the BA, the “independent craft brewer seal is a handy tool for enthusiasts to easily differentiate beer from craft brewers and beer produced by other, non-craft companies.” While BA membership is not required, “[q]ualified craft brewers who want to promote their beer in conjunction with the seal may deploy the seal on packaging, marketing collateral, websites, tap handles, menus and other materials only if solely in connection with their [licensee’s] products.”  In other words, independent brewers are free to use this seal to identify their beer as long as it qualifies as craft under the BA’s definition(s), and they agree to a simple licensing agreement. See https://www.brewersassociation.org/brewers-association/craft-brewer-definition/.

Awesome idea. Drinkers should have an easy way to identify where the beer they are drinking comes from.  But there are a couple of interesting issues the seal raises.  For example, who is independent enough?  With investor group ownership on the rise, with mergers and outright purchases, it’s a difficult question to answer.  Since the BA owns the mark and the BA has its definition of what it means to be a craft brewer, it can simply point to that definition and say yay or nay.  But the theoretical answer to that question is elusive, and everyone in the industry seems to be grappling with it.

From a legal perspective, the seal strategy is an interesting one. The BA is technically a not-for-profit trade association and essentially an advocacy group whose mission it is to “promote and protect American craft brewers, their beers and the community of brewing enthusiasts.”  Of course, the BA is generally recognized as THE association in the craft beer world (though some have argued that it is getting unwieldy and perhaps overstepping on some issues like label content).  And as someone who studies, teaches, writes about, and supports independent craft beer, I am very glad and excited that the BA does what it does.

But what will the BA do when a crafty brewery tries to use the symbol? Most of us know that IP owners have to enforce their rights or risk waiving them.  Most often, this comes in the form of a cease and desist letter.  Unfortunately, c/d letters have become quite common in the industry (my loyalty to a major US sports organization has been tested due to ham-handed c/d letters to clients).  Should a c/d letter not work, the next step is litigation.  And we know how expensive and time consuming that is—even if the litigation is border line frivolous or the positions are indefensible.  So the interesting question is how far the BA will take it once the symbol gets on the wrong bottles or packaging.  I’m assuming that it would go all the way, even through an expensive and distracting lawsuit.  I’m also assuming that the BA considered this very question before it put the seal out there.  But what if twelve crafty breweries started using the symbol at the same time?  Six?  Could the BA handle several of these lawsuits at the same time?  I wouldn’t put such tactics beyond the realm of possibility.

I suppose I am saying that the seal puts the BA in a potentially untenable position of having to defend its IP in several fora against several defendants. In the end though, the risk seems worth it, and I applaud the BA for sticking its neck out so that consumers will know what their beer is.  Besides, c/d letters and responses can be quite entertaining to write.

Let me know what you think. Cheers.

 

 

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