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After Trademark Cease And Desist, Brewery Change Beer Named 'Night Train' To 'Night Rain'

from the trollololol dept

Wed, Oct 7th 2015 11:08pm — Timothy Geigner

It's a damned dirty shame that if you search Techdirt stories for "beer" -- all you come away with are stories about silly trademark fights that ought never have happened. Of all the possible tangential topics having to do with beer, one of life's great pleasures, spinning into trademark discussions is the worst of them. Yet these stories keep happening. And, in our wonderful comments section, oft times someone will suggest a barely-changed replacement name to get around the trademark dispute that also clearly thumbs its nose at the accuser. Very few breweries choose to go that route, unfortunately.

O'so Brewing Co., however, decided to do exactly that, bowing to the power of the trademark dispute by renaming its "Night Train Porter" beer to "Night Rain Porter" because trolling isn't just for individuals, companies can do it, too.

"We’re going to run through the rest of the packaging for Night Train, so there’s a possibility you’ll see both on the shelves," said O'so brewmaster Ray Wagner of the porter's past and present names. "We didn’t change the packaging that much. If you’re not paying attention, you might not notice."

The Plover brewery announced in March that it would need to rename Night Train due to a legal challenge from another alcoholic beverage maker. Though it was never confirmed, speculation was that the challenge came from E&J Gallo Winery in Modesto, California, which makes a wine called "Night Train Express."

Yes, after crowdsourcing name suggestions from its fans, such as "C&D Porter" and "Injunction Porter", O'so decided to omit a single letter in the disputed name of the beer and carry on with things. It's fun to see a company on the receiving end of a dumb trademark C&D engage in a little snark while technically complying but, as I've been saying for several years now, the craft brewing industry is running into entirely too many of these situations. An explosion of growth in an industry shouldn't be bogged down by questionable trademark disputes. That isn't a recipe for fostering more and better business. Instead, these nettlesome disputes act as barriers. O'so itself, after this dispute arose, decided to proactively contact other businesses with slightly similar but distinct names to make sure there would be no lawsuits or letters from them as well. All that does is take the business away from what it does best: making beer. Sadly, this is quickly becoming an anticipated annoyance.

"It’s just another day in the beer world. This stuff’s happening all over the country," Wagner said. "We did get a little bit scared and start calling competitors that had similar names to beat the lawyers to it, to say, 'We aren’t going to come after you if you aren't going to come after us, can we all get along and get a beer later on?'”

The small brewery is looking forward to putting the whole ordeal behind them.

"I just hope it doesn’t happen again," Wagner said. "We’ve started actively trademarking names near and dear to us so we don’t have to go through this again. It’s a large cost for a brewery our size. It’s unfortunate we have to start fighting legal battles that haven’t started yet."

And you see how the spiral finds its next leg downward. Once bitten by a C&D letter, the brewery is now going on a trademarking splurge just to avoid having to go through any of this again. Trademarks that will, of course, carry with them their own requirement to protect the marks, no matter how congenial the brewery would otherwise wish to be. In other words, this is only going to get worse.

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Filed Under: beer, night rain, night train, trademark
Companies: o'so brewing co.

15 Comments

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That One Guy (profile), 7 Oct 2015 @ 10:42pm

Just one thing missing...
They need to send a box full of assorted teas, with a short letter explaining that since they're not longer using their 'T', they figured the other company might want it.
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Anonymous Coward, 7 Oct 2015 @ 11:24pm

And... there's still room at the snark bar for one more brew!
Let's raise a glass to the Nigh Train Porter. (He's a stout fellow, hops right to it!)
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Anonymous Coward, 8 Oct 2015 @ 2:35am

But wait! As a consumer, I'm still confused...
...because neither one of these was endorsed by Bruce Cockburn. ("Night Train" appears on his 1997 album "The Charity of Night".) How can I possibly tell the difference between a wine, a beer, and a song that happen to have the same name? Clearly MORE trademark attorneys are needed to engage in MORE cease-and-desist, MORE litigation, etc. until nobody uses the same name for anything ever.

Yaaaaaay billable hours!
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Anonymous Coward, 8 Oct 2015 @ 4:34am

question on "defending trademarks"

If I get a trademark for something, to use this case, say "Night Train" for beer. Someone else starts up a beer line with the same name, now I have to "defend it", yes?

Is stating that it is ok for them to keep their name, 'defending it'? it is a simple permission based structure, no?
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Michael, 8 Oct 2015 @ 5:07am

Re: But wait! As a consumer, I'm still confused...
I was riding a large piece of public transportation that rides on rails the other night and was going to use some specific terms to describe it, but TRADEMARK.
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Michael, 8 Oct 2015 @ 5:10am

Re:
Yes, you can simply allow others to use the mark - effectively giving them a license.

There is actually a little risk if you want to be able to protect the mark from some uses (I'm not sure what the problem would be with beer). If a trademark is diluted enough to become a common term (a great example is Elevator) you could lose the trademark entirely.
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Anonymous Anonymous Coward, 8 Oct 2015 @ 6:09am

Re: Re:
But not the name. After all, I can make a xerox on a Xerox. You would be able to prevent anyone else from trade-marking that name, at least in your category.

Xerox Stout anyone?
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Anonymous Anonymous Coward, 8 Oct 2015 @ 6:09am

Re: Re:
But not the name. After all, I can make a xerox on a Xerox. You would be able to prevent anyone else from trade-marking that name, at least in your category.

Xerox Stout anyone?
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Oblate (profile), 8 Oct 2015 @ 6:19am

Was 'Night Tram' taken? With a stylized 'm' they could even make it look like an 'in'.

"Night Rain" for some reason makes me think of "Night Wind" which may actually be appropriate for this.
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Anonymous Coward, 8 Oct 2015 @ 6:37am

Re:
I was thinking more along the lines of "Chocolate Rain", but maybe that's me just being weird again.
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Ninja (profile), 8 Oct 2015 @ 6:38am

Not Night Train Porter. NNTP for a techie touch.
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Kevin, 8 Oct 2015 @ 7:04am

My favorite craft beer trademark dispute:

http://floridaiptrends.com/2014/04/10/the-party-crashing-trademark-attorneys/
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Anonymous Coward, 8 Oct 2015 @ 9:21am

Egads! Beer vs beer trademark arguments are bad enough. But beer vs wine? You'd have to be pretty drunk to confuse (any) beer with (any) wine!
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Anonymous Coward, 8 Oct 2015 @ 9:30am

Night Train wino wine
is primarily consumed through a straw while the bottle remains in a paper bag.

So much for improving brand awareness.
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John Fenderson (profile), 9 Oct 2015 @ 7:33am

Re: Night Train wino wine
Through a straw? I've seen plenty of street people drinking Night Train (or equivalent), but never using a straw.
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