Case Study: Brewery Vivant vs. Tired Hands

In this article, we will discuss the trademark conflict between Brewery Vivant, a micro-brewery and producer of “Farmhand” French farmhouse-style ale, and Tired Hands Brewing Company, maker of “Farmhands” Belgian saison style ale. The purpose of this case study is to demonstrate the importance of trademark in a crowded marketplace where strong brand and product identity greatly affects sales potential. In addition, the study will examine how trademark disputes can adversely affect the image of smaller companies.

A trademark or service is defined as “any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services,” according to the United States Patent and Trademark Office. These marks allow for quick and effective consumer identification and association, which is why consumer confusion lies at the heart of any trademark dispute.

Who was involved:

The dispute involves Michigan-based micro-brewery Brewery Vivant, which has used the name “Farm Hand” in conjunction with its regionally popular craft beer, and Pennsylvania-based Tired Hands Brewing Company, whose locally popular “Farmhands” offering bears a striking resemblance to their competitor’s mark.

What was the issue:

The craft brewery industry has flourished in the United States. According to Brewers Association, as many as 2,500 breweries were operating in the country in June of 2013, up from 2,000 in 2011. Due to this increasingly crowded marketplace, trademark protection has arisen as a key concern for industry players. This is due to the need for distinct branding and identity to separate one’s product from the crowd. The similarity in the marks between Brewery Vivant’s and Tired Hands Brewery’s products adds unwelcome confusion to an already challenging marketplace.

What was the argument:

At the core of the argument lies the similarity of the two marks. Regardless of lettering or graphical differences, the names “Farm Hand” and “Farmhands” are, without question, similar. Because of the sheer volume of businesses and products in the craft beer marketplace, wading through the web of breweries is already a daunting task for average consumers. Adding further confusion to the market with virtually identical product names threatens the commercial interests of both breweries.

As Brewery Vivant’s market penetration grows, the company has a vested interest in protecting the brand name of their popular product. Their beer has gained popularity regionally and especially in their home state of Michigan. Tired Hands’ beer is still only locally circulated, primarily a staple at the company’s brew-pub, but the potential confusion should the two beers come in conflict presents reasonable justification for seeking trademark protections in the matter.

Furthermore, the concern of market conflict and dilution of trademark is not limited exclusively to these two companies. Narwhal Brewery of Brooklyn was required to change their name after Sierra Nevada raised concerns of customer confusion with their Narwhal Imperial Stout ale. West Sixth Brewing of Kentucky and Magic Hat Brewing of Vermont were forced to settle a logo dispute for similar reasons. This growing trend presents an arms race of sorts, in which leveraging trademark rights before others is imperative to establishing brand identity as the industry develops.

What was at stake:

As mentioned, the growing volume of craft breweries and beers, coupled with the rising popularity of craft offerings in the beverage market, necessitates exercise of trademark rights in order to affirm branding and identity. As the industry grows, commercial interests of Brewery Vivant are adversely affected by customer confusion, which Tired Hands’ beer currently creates. When one considers the annual increase in the revenue of craft beer, the commercial implications are clearly worth consideration. When one further considers the increase in volume of craft beer sold, protecting brand identity is, also, worth serious defense.

But the unique nature of the craft beer industry has additional implications in the dispute. To a large degree, the demand for craft beer is influenced by its perception as a mom-and-pop endeavor. For that reason, trademark disputes sit poorly with consumers who perceive such litigation and conflict as a tool of “big business”. In the aforementioned dispute between West Sixth Brewing and Magic Hat Brewing, customer perception was adversely affected when the matter ended up on social media. In the case examined here, both companies have a stake in amicably resolving the dispute for this very reason.

What was decided:

Tired Hands’ owner Jean Broillet dropped the name of the beer in order to comply with Brewery Vivant’s cease and desist notice. The owner/brewer of Tired Hands, Jean Broillet, wrote in a blog post:

As an industry, we are heading down a gnarled and paranoiac path that will only serve to isolate our customers by truncating the creativity of fellow beer producers; effectively losing sight of what made this industry so great when I entered into it nearly a decade ago… Collaboration, camaraderie, and a sense of infinite exploration.

Regardless of the legal result, this scenario demonstrates the tightrope-walk of trademark rights. Leveraging of trademark rights remains a perfectly legitimate protection for brand and commercial interests, but the public fallout of such litigation can harm the brand perception it seeks to protect. In this instance, exercise of a comprehensive trademark search could have prevented such conflict from occurring before the issue reached a head (no pun intended). Balancing such commercial protections with public perception remains a challenge for business owners both large and small.

Xavier Morales, Esq.

About the Author:

Xavier Morales, Esq.

Mr. Morales founded this trademark law practice in January 2007 with the goal of providing intellectual property expertise to entrepreneurs and businesses around the country. Since then, he has filed more than 6,000 trademarks with the USPTO. You can learn more about Xavier here.

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