Nancy Pham is a Lane Powell 2012 summer associate and is currently attending her second year of law school at the University of Washington Law School.  She may be contacted at npham17@gmail.com.

For microbrewers, taste and memorable names mean everything.  Loyal customers often ask for specific brews and word-of-mouth advertising is indispensable, since microbrews are often purchased in local restaurants and bars.  

Like many small businesses though, protecting your microbrewery brand and trademarks often raises a basic financial issue: Is it worth it?  This brief article explores some cost-effective ways to build your own beer brand identity, while also guarding against the possibility that you may be infringing upon the already established trademark rights of others.  

The “Knockout” Search

So, before you begin taking that home brewing hobby to the next level and coming up with the perfect name for your craft beer and perhaps your own brewpub, you should take advantage of some readily available resources to make sure that someone else has not already beat you to the punch.   

What you’re undertaking is called a “knockout” search in trademark circles.  Your goal is to find a brand name that is not confusingly similar to other products already on the market for beers or other products that may be related to alcohol or beer consumption.  The goal of trademark laws is to prevent confusion among consumers as to the source or origin of products or services.

While it may seem tempting to be playful and incorporate someone else’s famous trademarks[1] on your microbrew label, you should avoid that form of potential instant name recognition.  Famous marks are protected from having their commercial impression diluted by even unrelated goods or services.   

Likewise, the owners of famous marks can prevent “tarnishment” of their marks by use on products they deem to be unsavory—alcohol being a common such product.  Owners of famous marks often have the financial means and incentives to pursue even small-time poachers of their brands. 

In the age of robust Internet search engine capabilities, the good news is that a simple knockout search only requires an investment of your time. 

First, visit the United States Patent and Trademark Office website.  Running a free Trademark Electronic Search System (TESS) search will come up with all federally registered trademarks (with a margin of error based on search terms or how marks may have been categorized in that database).  

Second, a similar search should be conducted for state-registered trademarks.  Each state varies and while there are currently no TESS-equivalent knock-out searches available[2] in Washington or Alaska, Oregon does have its own trademark search.  This is another reason why a thorough Internet search is valuable, since it is more difficult to research state-registered trademarks.  

Third, because trademark rights under common law accrue automatically when they are being used in commerce, a search on the Google, Bing, or other search engines may also provide useful information about business websites and social media pages that are using trademarks that may be protectable, even though they are not registered in state or federal trademark databases.   

You’ve Explored the World Wide Web.  Now What?  

There are several scenarios that can happen after a knockout search is performed: 
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Food label lawsuits are often exercises in byzantine legal logic.  This is so because of the peculiar interplay between preemptive federal food labeling laws and regulations on the one hand and federal and state unfair competition and false advertising claims on the other.

The ability of individuals to pursue food mislabeling claims depends on whether allowing such claims to proceed would conflict with the purpose and intent of federal food labeling law and implementing regulations, such as those promulgated pursuant to the Food, Drug and Cosmetic Act of 1938 (“FDCA”) or the Nutrition Labeling and Education Act of 1990 (“NLEA”).  Those federal laws do not allow private lawsuits to enforce their provisions.

In Pom Wonderful v. The Coca-Cola Co., the Court of Appeals for the Ninth Circuit just eliminated a federal Lanham Act basis for pursuing food misbranding claims over regulated juice products.  This brief article examines the Pom case and what it means for the future of food label litigation.

The Nature of Pom’s Fruit Juice Label Claim

Pom contends that Coca-Cola’s labeling of its Minute Maid “Pomegranate Blueberry” juice label is misleading and deceptive because the juice product only contains 0.3% pomegranate juice, 0.2% blueberry juice (and 0.1% raspberry juice).  Most of the product consists of 99.4% apple and grape “filler” juices.  The brand label prominently displays the “Pomegranate Blueberry” name and features a colorful fruit vignette with a split ripe pomegranate, a sliced apple and a handful blueberries, raspberries and red grapes.  The label includes the legend “Pomegranate Blueberry Flavored Blend of 5 Juices.”  Although not at issue in the case, Minute Maid’s label also touts the fortified inclusion of an omega-3 fatty acid nutrient, DHA (docosahexaenoic acid), with the tag line of how its inclusion will “help nourish your brain.”


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In 1969, the Archies combined granulated and aqueous forms of fructose and glucose in a bubblegum song called “Sugar, Sugar.”   It topped out at No. 1 in the U.S. Billboard Hot 100 charts.  The lyrics “Sugar / Oh, Honey, Honey / You are my candy girl, and you got me wanting you” lilted through and permeated the AM and FM airwaves.

In 2010, manufacturers of “high fructose corn syrup” (HFCS) sought to break down the FDA regulatory barriers that exist between granulated and aqueous forms of fructose and glucose—but their efforts would be met with much less glamorous success.  By then, HFCS had become a persona non grata among anxious consumers.  Scientific studies issued earlier in the decade had suggested a correlation between its overconsumption and the epidemic of bulging waistlines and type 2 diabetes spreading across the United States.

While those early studies would later be debunked, perceptions actually matter more than concrete reality when it comes to the very personal act of ingesting food.  That act is imbued (and fraught) with emotional and spiritual qualities that can readily override or distort facts.  Just as Morris—the world’s most finicky cat—would not deign to touch anything other than 9-Lives cat food, American consumers began to thumb their noses at food products incorporating HFCS.  While it is a useful and cost-effective sweetener for industrial food processing purposes, it could not rise above its bad rap.

We’d Rather Switch Than Fight

Once upon a time in advertising lore, Tareyton smokers “would rather fight than switch” their cigarette brands.  HFCS did not follow that playbook.  Instead of defending the words, “high fructose corn syrup,” HFCS manufacturers decided to change its product stripes altogether.  Following the age-old adage that if it “looks like a duck, quacks like a duck, it must be a duck,” the Corn Refiners Association (CRA) embarked on a $30 million dollar marketing campaign to convince wary American consumers that “HFCS is corn sugar,” that “HFCS is natural,” and that “sugar is sugar.”

By way of background, HFCS was first produced in Japan and entered the American food supply in the early 1970s.  Its name accurately describes its composition.  Unlike table sugar, which consists of 50% glucose and 50% fructose chemically bonded together, the main form of HFCS included in soft drinks is made from an enzymatic process that blends together 55% fructose and 45% glucose.  The distinction between sugar components being bonded versus blended creates potential implications for human digestion and metabolic fate purposes, but those distinctions appear to have been overplayed in early scientific studies leading to HFCS’s demonization.


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