Branding Beer
Monday, April 19th, 2004Thanks to Ed for the kind mention on his blog, which is as close to big media as we may ever get. Close observers notice from his Sleeping Giant Brewing Co. hat that Ed’s a crypto-Helenan.
Speaking of beer, Ed drew my attention to the brewing feud between a St. Louis liquor distributor and Yellowstone Valley Brewing Co. When I lived in Billings, some friends and I dropped by George and Jay’s unassuming warehouse brewery–back when they were still building their taphouse bar–and they treated us to a short tour and brewing lesson. These are excellent Montana microbrewers who view beer as a celebration of local ingredients:
Milled under the Cretaceous Rims of the Eagle Sandstone – A paleo beach in Montana!
Brewed from waters of the Yellowstone River – the last free and wild river.
Fermented in the shadows of the majestic Breartooth Mountains.
Who doesn’t love a poetic geochemist brewer?
Well the David Sherman Corporation, purveyors of Everclear grain alcohol and Rebel Yell whiskey, does not share George and Jay’s appreciation for the unique Yellowstone river landscape. According to David Sherman, Yellowstone Bourbon was developed in 1854 by Kentuckian J.B. Dant; it’s name came from one of Dant’s salesmen who visited Yellowstone Park in its inaugural year of 1872: “He had the idea that if the name Yellowstone were put on a bottle of good whiskey, chances were good that the folks out West would buy it, and since the park was receiving publicity, the name would stick in everybody’s mind.” I can’t tell if the “folks out West” buy much Yellowstone Bourbon, and I haven’t seen it in many bars here.
Trademark law is more complicated than it should be because each case depends on a particular court’s view of what may or may not confuse consumers, which is hard to predict. Unfortunately, this uncertainty drives many bigger firms to threaten smaller ones, because judges see a plaintiff’s diligence in enforcing a trademark as evidence of the brand’s value. While the article notes several examples of Montanans successfully standing their intangible ground (Montana Knits of Dillon beat Claude Montana, and the Golden Nugget of Troy beat Las Vegas’s Golden Nugget), the costs of a trademark infringement lawsuit often force the little guy to give up his brand. In the end the dynamics of trademark law probably lead to overprotection of brand names in circumstances when no reasonable consumer would be confused.
If Yellowstone Brewing can’t afford to defend the lawsuit, it would be nice to see someone take up their cause pro bono, or for a public interest group or law school clinic to jump in. That may sound strange, but clear and evenhanded enforcement of intellectual property law benefits the public as much as robust real property law; there are all sorts of nonprofit conservation groups that champion the property rights of the small landowner–how about the intellectual property rights of the small brandowner?