If you’re thirsty and of legal drinking age, you are likely within a stone’s throw of being able to enjoy the cadre of remedial tonics offered at a craft brewery. There are now over six thousand breweries in the United States, a new record, with over 80 percent of American adults living within 10 miles of one.1
Because 98 percent of breweries are craft breweries, defined by the Brewer’s Association as small (fewer than six million barrels of beer), independent (less than 25 percent owned or controlled by a non-craft brewer alcohol industry member), and traditional (a majority of its total beverage alcohol volume in beers whose flavor derives from traditional or innovative brewing ingredients and their fermentation),2 you’ll often find yourself in a unique establishment offering beer from some combination of taps, bottles, cans, jugs, growlers, bombers, kegs and casks.
The number of craft breweries has doubled since 2013.3 As such, the number of craft brewery names has exploded, not to mention the number of names of particular beers offered by each brewery. It is no wonder that craft brewery trademark disputes have spiked.4
In one such dispute, Innovation Brewing filed a trademark application for INNOVATION BREWING and Bell’s Brewery opposed, asserting that the mark was likely to be confused with its mark INSPIRED BREWING.5
The Trademark Trial and Appeal Board (“the Board”) evaluated the likelihood that INNOVATION BREWING would be confused with INSPIRED BREWING in view of the well-established du Pont factors. Clearly, both parties are brewers, so unsurprisingly, both marks would be used in connection with identical goods, i.e., beer. Further, the Board found that because the goods are identical, they would therefore move in the same channels of trade. As such, the Board found that these two factors weighed heavily in support of finding confusion likely.
The Board also concluded that because beer is relatively inexpensive and subject to impulse purchase, consumers are held to a lesser standard of purchasing care than for a more expensive item like a car, also weighing in favor of Bell’s likelihood of confusion argument.
Finally, the Board addressed what is often the most important likelihood of confusion factor, the similarity of the marks. In comparing the marks in their entirety, the Board indicated that the word BREWING, common to both marks, is given little weight because it is at most descriptive, if not generic, when used in association with beer.
Next, the Board considered the similarities and dissimilarities of INSPIRED and INNOVATION and noted that while the initial letters IN- are common to both words, the words look and sound different and convey such different connotations (“inspired” beer tastes good, “innovative” beer is brewed with a new method) that there is no overlap between meanings. Accordingly, the Board concluded that the overall commercial impressions made by the marks as a whole were dissimilar and the marks were not likely to be confused with each other despite the lower required degree of similarity and despite the other du Pont factors weighing in favor of confusion.
At the end of the day, while both parties make and sell the same goods within the same trade channels, the dissimilarities of the marks in both appearance and meaning make confusion unlikely in this case. As such, consumers will continue to be able to enjoy beers that are both innovative and inspired. Cheers!
5 Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340 (TTAB 2017).