Author Topic: Clone Brew Names  (Read 773 times)

Offline Kit B

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Clone Brew Names
« on: March 31, 2011, 02:18:35 PM »
So, I just heard that Larry Bell has sent a cease & desist letter to Northern Brewer, requesting that they change the name of their Two Hearted Ale clone recipe from "Three Hearted" to something else.
While I realize that trademarks are serious business, I wonder what you're supposed to do, when you name a clone recipe.
It seems to me that nearly ever clone brew out there can run into trademark troubles.
What to do?
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Offline tschmidlin

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Re: Clone Brew Names
« Reply #1 on: March 31, 2011, 02:28:49 PM »
I would suggest they rename it Hoof Hearted. ;D

I can sort of see their point, it should be fine for NB to call it something else but in the description say it is a Two Hearted Ale clone.  Then again, I'm not a lawyer.
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Offline Kit B

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Re: Clone Brew Names
« Reply #2 on: March 31, 2011, 02:32:50 PM »
They changed it to "Dead Ringer".

But, I like your idea, more.
« Last Edit: March 31, 2011, 02:34:45 PM by Kit B »
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Offline tschmidlin

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Re: Clone Brew Names
« Reply #3 on: March 31, 2011, 02:36:48 PM »
Quick change. :)  I wonder if they could get away with calling it "Two Hearted Ale Clone" since it should be obvious it is not actually Two Hearted Ale.  Probably not worth the $$ paying lawyers to find out.
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Offline gordonstrong

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Re: Clone Brew Names
« Reply #4 on: March 31, 2011, 04:30:46 PM »
My favorite trademark suit was back in the early 1990s.  Apple codenamed one of their unreleased computers "Sagan".  Carl Sagan sued them.  So Apple changed the name to BHA, and said it was short for Butt-head Astronomer.  Sagan sued them again and lost.  The judge said, "one does not seriously attack the expertise of a scientist using the undefined phrase 'butt-head'."  Go ahead, look it up on google.

Apple was really messed up at the time (it was the in-between Steve Jobs years), but that always cracked me up.
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Offline majorvices

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Re: Clone Brew Names
« Reply #5 on: March 31, 2011, 05:29:56 PM »
Denny recommended on another forum that they rename it "cold hearted" ... :D
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Offline gordonstrong

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Re: Clone Brew Names
« Reply #6 on: March 31, 2011, 05:32:54 PM »
Bell Ringer

Then have a picture of Quasimodo on it.
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Offline bluesman

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Re: Clone Brew Names
« Reply #7 on: March 31, 2011, 05:36:18 PM »
I dunno...I'm on the fence with this. I could see Bell's point from a business sense but do you really think it will cause them to lose revenue or even damage their namesake.

I doubt it. It's really kind of a butt-head move if you ask me. Every business has their own agenda and perhaps this will be a win for them but I certainly can't see how it will.
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Offline majorvices

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Re: Clone Brew Names
« Reply #8 on: March 31, 2011, 05:37:49 PM »
It has certainly pissed off a bunch of homebrewers. I think its a stupid move, personally. But not a super big deal, either.
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Offline gordonstrong

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Re: Clone Brew Names
« Reply #9 on: March 31, 2011, 05:42:20 PM »
Do you really think a clone recipe for homebrewers is going to compete with or somehow degrade an established commercial brand like Bell's Two Hearted Ale?

But if their lawyers tell them they have to defend their trademark or else it is at risk, sure.  Still seems to be slapping at people who are likely their best customers and/or supporters.  Homebrewers may not purchase as much as everyone else, but they are opinion leaders who tend to influence a much wider group of people.

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Offline tygo

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Re: Clone Brew Names
« Reply #10 on: March 31, 2011, 06:35:13 PM »
Denny recommended on another forum that they rename it "cold hearted" ... :D

That would have been perfect.
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Offline hokerer

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Re: Clone Brew Names
« Reply #11 on: March 31, 2011, 06:40:20 PM »
Bell Ringer

Then have a picture of Quasimodo on it.

Quasimodo was looking for an assistant and a guy with no arms applied.  Quasi asked how he could work so he showed him by running across the belfry and head butting the bell.  Quasi said "That sounds great, do it again".  He did it again but got dizzy, stumbled, and fell to the street.  A crowd had gathered by the time Quasi got down to where the body lay and when he did, someone asked "Who is it?".  Quasimodo said "I don't know but his face sure rings a bell"
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Offline maxieboy

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Re: Clone Brew Names
« Reply #12 on: March 31, 2011, 06:41:10 PM »
NB's new American Wheat beer kit: Solsun. Larry? Larry?   ;D
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Offline rabid_dingo

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Re: Clone Brew Names
« Reply #13 on: March 31, 2011, 07:17:41 PM »
This is kind of a tangent to the brewers that refuse to share recipes. It's no serious
big deal but I really think Bell needs to consider the old phrase about imitation
and flattery. Why go through all the trouble to alienate some fans of your brew, ya know?

I bet the brewer that goes to the trouble of hitting up some of the bigger online shops
and trying their hand at the "clone" recipes, then giving an earned nod of aproval for
recipes that closely approximate the real deal could create business for both the
LHBS and the brewery...

I can see Vinny Cilruzo doing that... (did I spell that right?)
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Offline Pawtucket Patriot

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Re: Clone Brew Names
« Reply #14 on: March 31, 2011, 07:37:00 PM »
I first saw a thread about this topic on NB's forum last week.  I didn't weigh in there, so I'll add my $.02 here.

First, I don't actively practice business law (I work in the public sector), but I know a thing or two about trademarks.

Second, trademark claims fall into one of two categories: 1) actions based on "confusion"; and 2) actions based on "dilution."  Regarding confusion, the issue here is whether consumers are likely to be confused as to whether there is a brand association, endorsement, etc., between the protected mark ("Two Hearted") and the allegedly infringing mark ("Three Hearted").  In the case of NB's Three-Hearted Kit, I think Bell's has a legitimate concern with the possibility of consumers believing that Bell's might have some sort of affiliation with the NB product, especially given NB's recent introduction of the "Pro Series" kits, where actual breweries have formulated the clone recipes.  In fact, it may not be coincidence that the issue with Bell's only arose after NB started offering the Pro Series kits.  In any case, there are several factors that a court looks to in determining whether consumers are likely to be confused (e.g., the similarity of the marks, the relevant market, etc.).  And since trademark actions are civil matters, the burden of proof is a preponderance of the evidence (i.e., more likely than not).  So the ultimate question is whether it is more likely than not that a consumer would conflate in some way Bell's Two Hearted with the Three Hearted Ale kit.  You make the call. ;D

Third, regarding dilution, the issue here is whether the allegedly infringing mark somehow dilutes the protected mark.  The question to ask is whether the uniqueness of the protected mark is somehow diluted, i.e., "cheapened," by the allegedly infringing mark.  It would be kind of cold for Bell's to argue this, since so many homebrewers think very positively of Bell's beer, but again, I can envision Bell's argument: the NB product aimed at homebrewers dilutes the brand because the authentic commercial product is guaranteed to taste exactly how it should and the homebrew kit may or may not taste how it should based on the skill of, and the process used by, a homebrewer.  The potential for the kit to vary in quality and taste from the actual product dilutes the brand.

Finally, as to the propriety of Larry Bell taking this sort of action, I'm not sure I feel that great about it.  I know they're just defending their brand, but a lot of commercial brewers I know seem more likely to take a "live and let live" attitude toward something like this.  At the very least, I think Bell's could have had a win-win if they had been willing to come to the table with NB and design a Pro Series Two Hearted Kit.  
« Last Edit: April 01, 2011, 09:59:16 AM by Pawtucket Patriot »
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