BrewDog is just one of several high-profile trade mark infringement of cases recently, where small enterprises have found themselves pitted against a major company for control of their trade marks.
Probably the most interesting one was that of growing ‘punk’ craft beer brewer, BrewDog who objected to a Birmingham pub changing its name from Wolf to Lone Wolf on the basis that it had launched a spirits product of the same name
This Guardian article gives more detail but my basic observations are that this involved many different issues, not all of them contributing to the David versus Goliath rhetoric.
For both the brewer and the pub, this dispute was a case study in how NOT to look after a business’s reputation.
Trade Mark Infringement
Firstly, the action was disproportionate and on the evidence in the article had a reasonable chance of failing. Courts will look for a “likelihood of confusion” to determine trade mark infringement, and it’s very unlikely that a consumer will have a bottle of BrewDog’s Lone Wolf vodka and then choose to go into a pub when they’re walking down the road as they think it’s been opened by the same people!
Secondly, I think it unlikely that BrewDog’s lawyers would have pursued this case as they did without the authority and knowledge of the company themselves. An instruction is an instruction after all.
Thirdly, the pub could have saved itself a lot of bother had it applied to register the name as a trade mark, not least as their business was trading before BrewDog launched its vodka. UK trade marks operate under a first to file principle and it is important that all businesses, including start-ups and micro companies, realise that it is in their own interests to register their trade marks as soon as possible in every national market in which they have a presence.
Trade marks are the great leveller- both upwards and downwards. Big bullies can shout all they like but it’s worthless if the law is not on their side. Equally, small companies need to treat their trade marks more seriously as a key asset on their balance sheets.
Both need to register and protect their trade marks and, oh, get a good trade mark attorney, who knows how to do this proportionately and properly.
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