Voodoo Brewery Changes Beer Name By Dipping It In Snark In Response To Pitt Trademark C&D

from the mission-accomplished? dept

Snark is a wholly underrated tool for dealing with trademark bullies. While we've seen it employed in the past, the victim of trademark bullying turning the tables on the bully with humor is something that still is far too rare. One brewery recently showed exactly how this is done.

Voodoo Brewery has been selling its H2P IPA since 2014, with a can label that nods towards the University of Pittsburgh, where the brother of the brewery's founder went to school. It was only in late 2017 that the school sent out a cease and desist letter, claiming trademark infringement.

Voodoo started selling H2P in its original can in 2014. The beer grew in popularity and was twice featured on Pitt’s campus after its release. Then, in October, Pitt called Voodoo and asked it to cease and desist distributing the “H2P” IPAs with the school’s trademarked image, font and phrase. Voodoo released the newly designed cans a few weeks ago and they sold out in a couple of days.

Voodoo’s chief executive office, Matteo Rachocki, said that he and others at Voodoo were surprised at Pitt’s cease and desist request, since the beer was on the market for three years prior.

“We had been invited on campus to pour the beer twice, so we had just kind of assumed that we had their blessing,” Rachocki said.

That obviously wouldn't hold up as any kind of a legal argument, although one wonders what exactly explains the delay in Pitt's enforcement. The beer was not only known to the school, but had been displayed on campus, I assume specifically because of the tie in with the school. That sounds like it should have been an awesome example of a school understanding that the education and alcohol sectors are not common marketplaces, and working to support an alumnus. That possibility is now gone, with the school taking the strong arm route.

Well, it doesn't appear that Voodoo will be deprived of the last laugh, even as it complies with Pitt's C&D.

Rachocki met with Pitt officials Jan. 22 to work out a deal that would allow Voodoo to use Pitt trademarks. Rachocki said the new design for the can labels was on the conference room table when Pitt officials came to meet at the brewery. He said he presented the cans to make University officials aware of the brewery’s plan for the IPA if they couldn’t secure rights to Pitt’s trademarks. After an initially encouraging meeting in January, Rachocki said Pitt stopped responding to his emails.

The new cans still feature Pitt’s trademark blue and gold color scheme, but that’s where any allusions to Pitt end. The cans now read “NON-TRADEMARK INFRINGEMENT ALMA MATER IPA” with no other Pitt-related images.

The name refers both to the bullying Pitt did, as well as the fact that alumni work at Voodoo Brewery. Frankly, that's not a good look for Pitt in the public, but it's a wonderful example of how far a little snark can go in responding to trademark bullying.

Filed Under: beer, h2p, ipa, snark, trademark
Companies: pitt, voodoo brewery

Lagunitas Drops Trademark Suit Against Sierra Nevada After Public Backlash

from the guess-they-weren't-confused,-huh? dept

Here we almost went again. The craft beer space was known for quite a while for its congenial attitude when it came to competitors. That seems to have shifted a bit in the past few years, with all kinds of silly intellectual property disputes arising among breweries. Trademark claims seem to be the issue du jour, not surprisingly, though you'd think with the common public response being backlash this trend would have ceased already. It seems the lesson still needs to be taught, however, even amongst some of the larger craft breweries with some of the best reputations. Lagunitas, for instance, which likes to bill itself as the hip and laid-back beer for the NPR crowd (yes, over-simplifying), saw fit to sue competitor Sierra Nevada over trade dress issues until the public reacted and they quickly backed away.

In a suit filed Monday in U.S. District Court, Lagunitas owner Tony Magee argued Sierra Nevada’s design for its Hop Hunter India Pale Ale — which features “IPA” in large, bold, black capital letters — is too similar to the design for his Lagunitas IPA label.

And here are the labels in question. Both, as you can see, feature the letters "IPA", for India Pale Ale, in a bold font that has some degree of similarity. As you'll also see, assuming you aren't a blind wombat that's been dipping into the barley wine for twenty straight hours, both brewery's names are super-evident on the label, the color scheme is uber-different, the rest of the label isn't remotely the same, and oh my god, why do we have to keep doing this? The likelihood of customer confusion here is roughly the same as the likelihood that I'm about to sprout wings, horns, and enslave humanity under my forked tongue. I mean, sure, it might happen, but then we all have bigger problems, don't you think?

The public's reaction appears to have been similar.

But late Tuesday night, a series of tweets posted on Magee’s Twitter account said the suit would be dropped Wednesday morning.

“Today was in the hands of the ultimate court; The Court of Public Opinion and in it I got an answer to my Question; Our IPA’s TM (trademark) has limits,” according to a tweet posted to Magee’s account. Today I was seriously schooled & I heard you well,” another tweet declared.

The suit had claimed that distributors were contacting Lagunitas claiming that customers were becoming confused, but that seems unlikely given the wider public backlash. For the backlash to exist at all, you'd think there would have to be an absence of confusion. Lagunitas also claimed that consumers might think that Lagunitas had collaborated on a brew with Sierra Nevada, because apparently consumers can read acronyms but not the clearly labeled name of the single brewery on the front of each logo.

Sigh, get it together breweries. The whole point of you guys is to not be like the big macro-corporate brewery-jags. Just make awesome beer!

Filed Under: beer, craft beer, ipa, trademark
Companies: lagunita, sierra nevada

Defensive Patent License: A Solution To Patent Problems... Or Just A Way To Highlight Them?

from the and-shouldn't-it-be-league dept

There have been a few unique ideas lately about ways for tech companies to try to "deal" with the explosion of innovation-hindering patent lawsuits against any company that's been marginally successful. For innovators, it's become something of a pandemic, so it's no surprise to see some experiments come about. A few months back, for example, Twitter got a lot of attention for its Innovator's Patent Agreement, which guarantees that any patent assigned by an employee to the company allows the original inventor an effective veto its offensive use. That is, an engineer (even after they leave Twitter, or even after a patent may have changed hands) can, independently of the patent holder, issue a no-fee license for the patent -- so the inventor can grant a license that gets others out of any patent dispute.

And while some other companies are considering using Twitter's IPA -- which it's released publicly for others to use -- it's still a single-company solution. One alternative that focused on a bunch of companies working together was Paul Graham's Patent Pledge which lets companies pledge that they won't use software patents against companies with less than 25 people. A bunch of startups have signed on. It's a nice idea, but the wrong target. The companies willing to sign such a pledge tend to be the ones who wouldn't use their patents offensively anyway.

This week, another potential option was announced too: the Defensive Patent Licence (DPL), which basically requires those who sign up to pledge all of their patents to be covered by the DPL. The way it works is any company that signs on to the DPL cannot assert its patents against any other DPL member. In some ways, it seems like the "L" in DPL would be better as "league" rather than license, since the key aspect is that anyone who does this is effectively in agreement with everyone else in the DPL.

Of course, there's a bit of game theory at work here. You might think that bigger companies would never join the DPL -- and to some extent that's clearly an issue. However, remember, that the big guys may want to avoid lawsuits from patents under the DPL too... but the only way to do so would be to join, at which point they'd have to effectively license all their patents to all other members.

Jason Schultz and Jennifer Urban, the professors responsible for putting this together, have an interesting research paper on the concept that's worth reading.

In many ways, this is an attempt to use the "benefits" of a system like, for example, Intellectual Ventures, without the soul-sucking evilness part. How well it works will very much depend on who takes part. Though, a big issue is that trolls will clearly stay out of it, and they remain one of the central problems with the patent system.

In the end, it seems like all these different ideas are really mostly useful for one key thing: highlighting the many, many, many ways in which current patent system is totally screwed up.

Filed Under: defensive patents, dpl, ipa, licensing, patent troll

Ongoing Patent Fights Mean Startups Are Now Wasting What Little Money They Have At The Patent Office

from the not-cool dept

Last week, I had the chance to chat with the General Counsel of a well known internet company -- not a "giant" one, but one you've almost certainly heard of -- and we got to discussing Twitter's new patent assignment agreement with its employees, and whether or not other tech companies would start offering the same thing. He was a bit skeptical, and pointed out that, even at a company the size of his (big enough to have a full time general counsel, for example) they had applied for exactly zero patents. He said he's tried, but none of the engineers at the company have any interest at all in patenting what they're working on (actually, in talking to someone else later on, I heard that the bigger issue is that some of the employees are thinking about ways to open source their work). Either way, the lawyer noted that, because of that, any patent assignment agreement was something of a waste of time. His company just wasn't interested.

Unfortunately, it appears that not all startups are working that way. With Yahoo's patent fight against Facebook getting so much attention these days (not to mention other big patent fights involving companies like Google, Apple, Microsoft, Oracle and others...), it seems that startups are (rather reluctantly) spending a lot more time (and money) at the Patent Office.

This is, to put it mildly, crazy. The two biggest scarce resources for startups are time and money. Throwing them away on getting patents is a huge waste, and it's main purpose is to act as insurance against failure or against jealousy over extreme success. Basically, most patents are completely useless. But if a company is failing, then perhaps it can sell off its patents. And, if a company is succeeding, then suddenly others will start suing it for patent infringement -- and the hope (rarely realized) is that having at least a few patents in the portfolio means that other practicing entities won't sue for fear of getting sued back (patent trolls are exempt from this, however).

It's really too bad that the state of the patent world today is such that are most innovative companies are basically forced to throw away time and money to apply for patents they never want to use.

One separate aside on this story. The article talks about the Twitter IPA agreement, and later quotes the founders of the startup Everyme as saying they support the IPA, but: "their first three apps were already with the U.S. Patent and Trademark Office by the time IPA was available, though, and they don’t plan to refile them." This sentence makes no sense. The IPA has nothing to do with the USPTO and the patent filing. It's merely a part of the assignment agreement, leaving some portion of control with the inventor. In fact, Twitter -- who does have some patents -- has said that it's using this agreement retroactively with patents that were applied for before the IPA existed. So there's no reason to refile the applications at all. In fact, the IPA is entirely separate from the actual patent application.

Filed Under: ipa, patent assignment, startups, uspto
Companies: apple, google, microsoft, oracle, twitter, yahoo