How is Beer Branding like Highlander?
Originally published on our craft beer newsletter Alcohol Content.
Written by: Jeffrey Gitchel, Esq. of Elliott & Davis
Photo courtesy of Highlander.
The TLDR:
- Minocqua Brewing Co. released a beer called “OPE: Lager with Big Dad Energy”
- They quickly got a call from OPE! Brewing saying they violated their trademark
- While things get worked out, Minocqua Brewing Co. dropped “OPE” from the beer name
- So what’s ‘“OPE” anyway? It’s a Midwestern slang term for “oops.”
Can you trademark it? We asked our copyright lawyer to find out.
This article reports about a dispute between OPE! Brewing and Minocqua Brewing Co. after Mincoqua launched a new beer in honor of Tim Walz called OPE: A Lager with Big Dad Energy.
According to Minocqua’s Facebook post, when it received a call from OPE!’s attorney accusing Minocqua of trademark infringement, Minocqua wondered “how is it possible to trademark a word that most Midwesterner’s [sic] use as a way of saying ‘excuse me’?” and, “giggled a little.”
Minocqua isn’t giggling now. They’ve rebranded to Big Dad Energy Lager and developed a new label.
Minocqua’s post put on a brave face, but it appears that they fell victim to a couple common branding mistakes.
First, given how things played out, it would be surprising if Minocqua performed any research before choosing the OPE: A Lager with Big Dad Energy name. Before launching a brand, it’s important to know your competition. A competitor that has the same, or even a confusingly similar, name is likely to respond the way OPE! Brewing did – with a call or a letter, followed by a lawsuit.
And while Minocqua spins its situation nicely, if they really thought they would win, they wouldn’t have changed their name. FWIW – we think they made the right decision; they were in real trouble.
Second, their response reveals a real misunderstanding of how trademarks work. “Beer” can’t be a trademark for beer, but almost anything else can. The fact that a word is commonly used doesn’t make it unprotectable. Otherwise, Hello wouldn’t be a trademark for toothpaste and other oral care products and Apple wouldn’t be a trademark for, well, Apple.
What Can Be a Trademark?
Let’s stick with one brand for a minute. The word “Levi’s” is a brand for jeans, as is the slogan “Shrink-to-Fit”. So is the number “501” and the red Levi’s logo. It’s even possible that the Shrink-to-Fit jingle was a trademark back in the day. Under the right circumstances, even a color such as pink or brown can be a trademark.
When choosing a new brand, don’t assume that you can pick any name you want. The right due diligence can be the difference between a cool, smooth launch and being beheaded even before you get to the gathering.
Disclaimer: This content is for informational purposes only and should not be considered legal advice. For guidance specific to your situation, please consult a qualified attorney.