Published: 11 December 2017
Area of Law: Intellectual Property
Putting the IP into an IPA
It’s been widely reported that the pub industry has suffered heavily during the recession (and beyond), so there may be welcome news that the trend could be bucked — if the increase in trade mark applications for UK beer brands is anything to go by.
This rise might be as a result of the ‘craft beer revolution’, which has kick-started something of a beer revival — with the number of UK breweries reportedly rising 64% in the last 5 years. There remains a debate as to what ‘craft beer’ is, but it is usually a label given to smaller scale independent brews, which have a tendency to be more experimental than traditional real ales. As a result, new entrants are often trying to differentiate themselves in the crowded marketplace through unique, distinctive, and often vibrant branding and packaging. Traditional breweries have also been revamping their branding in recent years.
Why you should consider applying for a trade mark
If a brewery (or any business) comes up with a new ‘brand’, they may then wish to seek the protection of a trade mark — it is a well-known fact to beer fans (and IP lawyers) that the first registered trade mark in the UK was the Bass Red Triangle in 1876.
There are many benefits to owning a trade mark, applicable to all companies, such as:
- A trademark provides exclusive rights to use the mark in relation to the goods / services for which it is registered. This therefore allows the owner to take legal action against anyone who uses the brand without permission, including counterfeiters.
- It allows owners to put the ® symbol next to their brand, giving notice of the owner’s rights and deterring others from using similar / identical marks. The mark will also show up on official searches when other breweries/companies are choosing their brand names and ‘look’.
- In addition, it allows the owner to sell, license and assign the brand, and to take out financing secured against the trade mark.
It’s possible that another reason for an increase in trade mark applications may be that breweries are not now just concerned about protecting the name of their breweries — but that they may be applying for trade marks to cover the names of particular beers, and slogans and logos for use on pump clips, bottles/cans and other merchandise.
However, the industry still relies on co-operation between breweries — for example when trading / purchasing beers from each other, collaborating on new brews, and working together at beer festivals — and also a market of devoted drinkers and a community in which news (and views) spread quickly. Trade mark owners will therefore need to make commercial evaluations when seeking to enforce their rights. The most high profile recent example of this is when Brewdog (reportedly the fastest-growing food and drinks producer in Britain between 2012 and 2016) faced a backlash after requesting that Birmingham pub ‘Lone Wolf’ change its name due to Brewdog’s trade mark for LONE WOLF.
It is also worth noting that this does not appear to be just a UK trend – the same is happening in the US and in other countries with thriving craft beer scenes.
What you need to think about when considering applying for a trade mark
Before applying, or enlisting an IP lawyer / attorney, you should consider the following four points:
- The mark(s) you want to register - for example, your mark cannot be too descriptive of the goods/services or a common phrase meaning that it is non-distinctive. You must also check that the mark is not already registered or in use by another business.
- Territory - you may want the mark to cover the UK, Europe and/or worldwide — depending on where you intend to trade.
- The types of goods/services that you want to be covered - you need to specify the relevant Nice class(es) — for example class 32 which includes beer.
- Budget - The more territories and goods/services covered, the greater the cost of the application (and subsequent renewals).