All bets are off: EUIPO Cancellation Division holds that Lottoland’s Powerball EUTM was filed in bad faith
7th August 2022
Like the Whiskey distilleries in Ireland, the Irish brewing industry has undergone a revival in recent times, with the craft beer movement at the fore.
Craft breweries first began to emerge in the 1990’s (such as the Porterhouse, Franciscan Well Brew Pub and the Carlow Brewing Company (O’Hara’s)), but following the Celtic Tiger, the industry in Ireland expanded, with craft beer becoming mainstream in the last decade.
The explosion of microbreweries and the saturation in the market of new beers can confuse consumers. With increased competition comes an increased need for breweries to distinguish their company. There is a growing trend for breweries to have eye-catching artwork and snappy, witty, or pun-like names for their individual brews. This can come with a risk that their products could be copied, or be similar to another brand or beer.
As the industry flourishes, and the way beer is enjoyed is changing, it is even more imperative that brands protect the name of their brewery. It has been reported that the filing of trade marks for beer has increased by 20% in the UK.
The revival of the brewing industry, particularly in craft beers
According to the FFT (Food For Thought Magazine), in 2017 consumption of craft beer increased by 12.7% and in 2018 accounted for nearly 3% of the entire beer market in Ireland, with turnover closing in on €50 million per annum. This trend in the Irish market has continued and the brewing, selling and consuming of craft beer has become mainstream. Now, award winning craft beer is on sale, not just in pubs, bars and off-licences but in your local corner shop and supermarket. With the advent of virtual craft beer tasting, increased demand for home-deliveries, and online purchasing, consumption habits are changing.
In 2013, the Independent Craft Brewers of Ireland (ICBI) was established in an effort to find strength in numbers and joined forces with the Association of Independent Brewers of Europe in 2018. The UK, and the US also have independent brewer associations. To be a member of the ICBI you must be an SME, independent and have a licence to brew beer. To help consumers select beers from members of these associations, each body has developed an independent seal to highlight the type of company consumers are supporting with their purchase.
There are currently 32 craft beer breweries and microbreweries associated with the ICBI. This is not the total amount in Ireland, there are actually over 125 microbreweries. It is therefore a busy market, where brewers need to build a strong brand and protect it, as the brand is what customers use to pick a product from a crowded shelf, fridge or row of beer taps.
Why trade mark the name of your beer or brewery?
While applying for and registering a trade mark may seem time consuming and costly, it both can and will save time and money in the long run. While some small micro-breweries may never be picked up as having a similar name or logo, those who begin to sell in local supermarkets and take part in competitions and festivals are noticed. Having a registered trade mark does protect small businesses against unwarranted infringement actions as trade marks can be used as a defence. In Ireland having an Irish trade mark will protect you in Ireland only. A European Union Trade Mark (EUTM) provides you protection in the 27 member states and most have a national European registration as well. While the European Union, as a market for craft beer is very important, the USA, Canada, the UK, Australia and New Zealand are equally, if not more important for exports of Irish craft beers.
It’s not just beers
Much of the litigation faced by micro-breweries has not come from other craft beer producers, but from wine, soft drinks and flavoured drink producers.
If you have infringed a trade mark in Ireland, the usual practice would be to settle and to get rid of the infringing stock. This may mean giving away for free or destroying the stock and re-branding. In the USA the situation may be much more damaging as significant costs may ensue. This is why, when the services of a trade mark attorney are requested, extensive searches of trade marks in use are undertaken to prevent the potential for disappointment. SMEs can be devastated by infringement proceedings. In a sector that is highly competitive, with over 100 SMEs operating in the same area, protecting your name first will help build your brand and prevent others from ‘free-riding’ on your success by using a similar name or potentially similar logo/artwork.
It is not just trade marks which can be used to protect the intangible assets of a brewery. Innovative bottle design can be protected through registered designs for up to 25 years or even unregistered designs for 3 years. Patents can protect new ways of brewing and new formulations, and copyright can protect the artwork on a label.
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