Trademark disputes are common in the craft beer industry.
The abundance of craft beers all over the country results in similarly-named breweries and beers quite often. While obtaining a federal trademark is usually a good idea if you are selling and advertising your beer/brewery in more than one state, this abundance of breweries results in a large number of rejections at the United States Patent and Trademark Office (USPTO). I have found that many breweries are aware of these issues and are open to working with other breweries to minimize any possible confusion, especially when the breweries are located in different areas (different states or different regions). As such, if the USPTO does issue a likelihood of confusion rejection based on another brewery, oftentimes a consent/co-existence agreement can be a good possibility to obtain with the other brewery showing that the two parties have not experiences any actual confusion and that they will take steps to ensure there is no confusion in the future. The USPTO will typically take this agreement into consideration when ruling on a likelihood of confusion rejection, thus hopefully resulting in the issuance of the federal trademark.
While two breweries with similarly-named beers or the brewery themselves is not that all uncommon and the possibility of the two breweries working together to minimize confusion is oftentimes possible, those situations are usually present when the two breweries are not located in the same geographic area. The geographic locations of the breweries and where they sell their beer is huge when looking at actual consumer confusion. Many craft beers do not distribute their beers nationally, and as such, consumers are not going to be confused by two similarly-named beers in two vastly different regions.
But what happens when these two breweries are close in proximity to the other? That is the situation right now with two Texas breweries located within 100 miles of one another who both have “monkey” in their names. Suds Monkey Brewing Co. located in Dripping Springs, Texas (west of Austin) is suing San Antonio’s Brew Monkey Beer Co. for trademark infringement, alleging that the San Antonio brewery name is confusingly similar to their brewery name.
Brew Monkey Beer Co. recently opened at the end of August 2020. The stakes are high, as Suds Monkey wants a federal court to prohibit Bew Monkey from using the Brew Monkey Beer Co. name, along with being awarded trebled damages and profits made by Brew Monkey.
The USPTO issued trademark registrations for Suds Monkey Brewing (registration date of August 8, 2017) and Suds Monkey Brewing Co. (registration date of January 2, 2018), with a claimed first use date of May 12, 2017.
Brew Monkey Beer Co. has filed a trademark application for their logo which contains the wording “BREW MONKEY BEER CO. SAN ANTONIO TEXAS,” and a monkey holding a beer. This application was filed on July 7, 2020, and has not yet been examined by the USPTO. It is an intent-to-use application.
The owner of Brew Monkey hopes that the two will come to a reasonable compromise. However, Suds Monkey Brewing accuses Brew Monkey of intent to deceive consumers and cause confusion among purchasers.
It will be interesting to see how this case progresses. As Brew Monkey has just recently opened, it is possible that they would re-brand in an attempt to settle any potential claims from Suds Monkey, even though that could be costly to do so. When looking at the actual infringement between the two marks, they both contain the same word “MONKEY,” and “SUDS” does have the meaning of beer. Thus, it is likely that, had this lawsuit not been filed, the USPTO would have issued a rejection of Brew Monkey’s trademark application for likelihood of confusion based on the Suds Monkey trademarks. But it is possible that the addition of the logo would be seen as a further differentiation point between the two marks. However, even if the Brew Monkey trademark did not issue, that would not prevent Brew Monkey from using the mark, and that is why the lawsuit has been filed as a federal court is the proper venue to actually prevent another from using a federally-registered trademark, as is the case for Suds Monkey.
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