At 8000+ There’s Bound To Be Some Confusion – Similarly Named Breweries, Part 3

At 8000+ There’s Bound To Be Some Confusion – Similarly Named Breweries, Part 3

by Mark E. Lasbury for Indiana On Tap

A while back we did a couple of articles on Indiana breweries that have names similar to other breweries around the country and world (here and here). We’re not saying that these things will lead to cease & desist orders, but it’s happened before. The most interesting thing is how the two breweries often know about each other and get along just fine. The similar names also point out just how hard it is to come up with a totally unique name – certainly for a beer, but also for a brewery.

We found more than fifty examples in Indiana of breweries that have names similar to other breweries (out of 183 breweries in the state). Here are the stories of a few more examples:

The top is Oldenburg, IN, the bottom is Galax, VA. image credit: Creek Bottom Brewery and Creek Bottom Brewing

1) Creek Bottom Brewery in Oldenburg (opened in 2018) has a taproom on the way and it’s not in a creek. It’s amazing how many breweries have “creek” or “bottom” in their name; there are at least breweries that have have some version of one or both of those words in their name. I guess that makes most of the safe from a C&D; if someone went after one “creek” brewery, it could start a domino affect that could affect hundreds.

But having both words in a name is much less common. There is another brewery called Creek Bottom Brewing (brewing, not brewery) in Galax, VA from 2014. Steve and Melanie of Creek Bottom Brewery told me, “We did see this when we first decided on the name.  The legal name of our brewery is actually Creek Bottom Brew LLC, with a DBA (doing business as) of “ Creek Bottom Brewery”.  However before I even established the LLC I trademarked “Creek Bottom Brewery” with the PTO, in 2016, so I have that name in a general form i.e. the trademark is the wording in that order.”

Steve added, “Where it can get sticky legally is if each of us decided to have overlapping distribution areas, but as we have no intention of distributing outside of Indiana and as long as they do not expand in to Indiana the risk is low. Also as we have trademarked the name. That helps, but we can still get into issues with who used it first, a great way for lawyers to make money. At the end of the day my philosophy is to leave well enough alone, and I suspect that is theirs as well, else we would have seen a “Cease & Desist” by now. Besides, if things ever go sideways with the other Creek Bottom Brewery then we simply change the name, there are worse things.”

The interesting thing is that Steve has heard from Gravel Bottom Brewery in Michigan about potential branding issues. Steve called the owner and he said it was just his lawyer covering his bases for the name. “We agreed he has no intention of distributing out of his local area in MI and like I said we have no intention distributing outside of Indiana.”

Left is Muncie, right is Michigan. image credits: The Guardian Brewing Company and Guardian Brewing

2) Indiana’s The Guardian Brewing Company opened in 2015 and is fairly unique for the use of the word “The” in the name. It comes from the fact that the owners have William in their names, and the meaning of the name William is “The Guardian.” Despite being a full year younger, Guardian Brewing opened with a very similar name in our neighboring state of Michigan. This then became a point of discussion in Muncie.

Manager and small batch brewer Jarrod Case said, “We all talked about this particular topic, and decided that it’s probably best that we don’t comment on this quite yet. I will say however, that we were operating as a business first.” With all the great beer The Guardian is making and starting to push out the door into distribution, I’d surmise that The Guardian is thinking about Michigan or some other surrounding state and down the road is justifiably concerned that people could confuse the two brands.

3) Here’s a strange example that has had a real world affect, but not from where you thought it might come. Damsel Brew Pub started it life in 2018 as Maidens Brewery & Pub in Evansville, with owner John Mills II naming the beers with women’s names- those were his maidens. There is a Nine Maidens Brewing in Rochester, NY that opened in 2019, but John told me that he wasn’t going to pursue any action against them, and he didn’t think they would seek trademark protection and send him a C&D.

But the band Iron Maiden had a different opinion. John said, “We have changed to Damsel Brew Pub at the request of Iron Maiden Holdings LTD – the company for Iron Maiden the music group.  The only information I can supply regarding this matter is that Maidens Brewery & Pub has changed their name at the request of Iron Maiden.” The new signage went up a couple of months ago, and now everything is proceeding as it was, with beers named with girl’s names.

Lafayette, IN on left. Buffalo, NY on right. image credits: Lafayette Brewing Co. and Lafayette Brewing Co.

But even that brought a C&D. John told me, “It came from another Indiana brewery for a beer name they have registered for a seasonal brew only distributed in Indy. Since June 2018 Maidens has produced approximately 90 different beers.  The Indy beer and our Maiden beer were not in the same style and never within a 3 hr drive available to each other’s market.  I simply responded that once our batch runs out on draft, we will not call it by that same name. We will rename it – and that was sufficient for them.”

4) Most breweries work well with other breweries – but not always. Lafayette Brewing owner Greg Emig got wind in 2017 of brewery from Buffalo, NY changing its name. They tried to reach out and suggest that it might not be a good idea – that it could bring social media confusion, but it didn’t help. Greg said, “They were formerly known as the Pan American Grill & Brewery, but they simply refused to listen to reason (about changing their name to Lafayette Brewing Co.). Given the world of social media, you would have thought they would want to create a distinct identity for themselves, but they were not even willing to discuss the matter.  We can’t send a C&D because we don’t have a federal trademark on our name as you can’t trademark a geographical location (Lafayette). There has been a ton of confusion on social media, with reservations and even with employees calling in sick. Curiously, this same owner has other brewpubs in which he has utilized the name of existing breweries. We’re not happy with the choices they made, but there’s not much we can do about it.”

5) Auburn Brewing Company in Auburn, IN opened in 2018 with the same the name of a brewery in Auburn, CA that opened in 2007 – Auburn Alehouse. Owner Joshua Metcalf told me that he was aware of them, but the two haven’t had contact with each other. Josh and Emma do have plans to visit the Auburn Alehouse at some point, “We would plan to give them a heads up we are coming as I’d love to step in on a brew day! For the most part the brewing community is amazing and everyone wants to work together, which is a big reason why we wanted to be a part of it.”

Auburn IN on left. Auburn CA on right. image credits: Auburn Brewing Company and Auburn Alehouse

As to the common name, Josh said, “I have taken an alcohol law class and spoke to a few lawyers regarding names and trademarks. With a name that’s based on geography, you must utilize the name for 5 years before you can file a trademark. I would also have to believe that any lawsuit based on geographical name would be much harder to win.  Honestly I have never been concerned about it. Our business model is to be a small community brewery that hopefully becomes a destination brewery. We have no plans to open other locations or even distribute our beer so I wouldn’t think that Auburn Ale house would never be threatened by our business.”

But that doesn’t mean it hasn’t had effects. Josh added, “I have had a few people inquire about playing music at our brewery and later find out they are from California. I think the biggest issue here is that musicians are looking for gigs and see “Auburn” in the name and assume it’s the Auburn nearest to them. We have received one phone call asking about a certain beer available for carryout (we don’t have bottles or cans yet) which they just did a quick online search for Auburn brewery and assumed they where calling the correct one.”

6) The Tap Brewery in Bloomington has a name very similar to The Tap Brewing Company in Havermill, MA, which opened in 2003. Head brewer Jarrod May (Bloomington) doesn’t think there have been any conversations about legal options, but he has experienced some confusion over the names. Jarrod said, “As far as I know this has not been an issue other than with some minor things including some Untappd check-ins or people searching for our graphics online for a promotional poster and using theirs instead. It is normally caught in proofreading and fixed before it hits the market.”

Bloomington on left. Havermill, MA on right. image credits: The Tap Brewery and Te Tap Brewing Co.

One bit of confusion was more amusing, “I was once having a conversation via email with a brewer in Mass. and at one point he asked me to just swing by because it was easier and we could discuss over a pint. Then he realized I wasn’t the brewer from The Tap Brewing. We had a good laugh and continued our conversation.”

For the general subject, Jarrod added, “I do know that we began as The Tap Beer Company and later became The Tap Brewery. In all honesty it flows easier. I think names can be similar if they are far enough away from one another. Having two breweries named “Energy Beerwerks” and “Liquid Energy Brewing” within the same state or with distribution in the state that the other resides in could potentially cause problems with distinguishing brands at a quick glance or to the inexperienced drinker, but otherwise if they are both brewpubs on the opposite ends of the country with no packaged or distributed product, I’m pretty sure it will never be an issue until the aforementioned begins to occur.”

Conclusion. Other breweries in Indiana were more skiddish about talking about the matter, and I don’t blame them. Whether they feel the might be on the receiving end of a potential C&D or they might be getting ready to send one out, it’s a touchy situation legally and more than one Indiana brewery I contacted preferred not to be mentioned.

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