The IP of IPAs: A Look Into Trademark Infringement in the Craft Beer Industry

Journal of Intellectual Property Law Volume 26 Issue 2 Article 3 January 2020 The IP of IPAs: A Look Into Trademark Infringement in the Craft Beer Industry Shivani Patel University of Georgia School of Law Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Intellectual Property Law Commons Recommended Citation Shivani Patel, The IP of IPAs: A Look Into Trademark Infringement in the Craft Beer Industry, 26 J. INTELL. PROP. L. 249 (2020). Available at: https://digitalcommons.law.uga.edu/jipl/vol26/iss2/3 This Notes is brought to you for free and open access by Digital Commons @ University of Georgia School of Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ University of Georgia School of Law. Please share how you have benefited from this access For more information, please contact . The IP of IPAs: A Look Into Trademark Infringement in the Craft Beer Industry Cover Page Footnote J.D. Candidate, 2020, University of Georgia School of Law. The author would like to thank Professor David Shipley and the editorial board of the Journal of Intellectual Properly Law for their help on this Note, as well as Jeff Mabry of Blue Sky Athens for inspiring the topic of this Note. This notes is available in Journal of Intellectual Property Law: https://digitalcommons.law.uga.edu/jipl/vol26/iss2/3 Patel: The IP of IPAs: A Look Into Trademark Infringement in the Craft B THE IP OF IPAS: A LOOK INTO TRADEMARK INFRINGEMENT IN THE CRAFT BEER INDUSTRY Shivani Patel I. INTRODUCTION II. BACKGROUND .................................................... ................. 250 .......................................................... 251 A . TH E BE E R IN D U ST RY ................................................................................................ 251 B. TRAD EM ARK .DEPLETIO N ....................................................................................... 252 C. TRADEMARK DEPLETION IN THE BEER INDUSTRY...................................253 D. THE ECONOMICS OF TRADEMARKS..................................................................254 E. LIKELIHO O D OF CON FUSION ............................................................................... 255 F . DIL UT ION ........................................................................................................................ 256 G. D E FE N SE S ...................................................................................................................... 1. Fair Use Defense. ................................... 2. Parody/FirstAmendment. .. ................................................ 3. Laches Defense.............................. ....................................... H . BE ER LITIG A TIO N ...................................................................................................... 258 258 258 259 260 I. CURRENT, ONGOING LITIGATION......................................................................263 III. ANALYSIS....................................... .......................... A. ARGUM ENTS FOR LITIGATION ............................................................................. 266 267 B. ARGUMENTS AGAINST LITIGATION................................................................... 267 C. SONY PICTURES TELEVISION V. KNEE DEEP BREWING...........................268 1. Part 1-Parod/FirstAmendment.................................................... 2. Part2-Non-Infringement.. ................................................ D . IM PLIC AT IO N S ............................................................................................................. IV. CONCLUSION ..................................................... 268 272 273 274 *J.D. Candidate, 2020, University of Georgia School of Law. The author would like to thank Professor David Shipley and the editorial board of the JournalofntellectualProperlyLaw for their help on this Note, as well as Jeff Mabry of Blue Sky Athens for inspiring the topic of this Note. 249 Published by Digital Commons @ University of Georgia School of Law, 2020 1 Journal of Intellectual Property Law, Vol. 26, Iss. 2 [2020], Art. 3 250 J. INTELL PROP. L [Vol. 26:2 I. INTRODUCTION "Alcohol isn't just a mind-altering drink: It has been a prime mover of human culture from the beginning, fueling the development of arts, language, and religion."' Alcohol production and consumption can be traced to civilizations dating back thousands of years all around the world, and it has become so essential to our society that experts have gone on to joke that humans should be 2 called "Homo imbibens." Within the current alcohol industry, two essential 3 qualities that are becoming more common are creativity and variety. Alcohol has become a defining aspect of human culture and our sense of society. It has grown and formed how we function, and it has been shaped by our constantly changing culture, especially as our culture becomes more sophisticated. Over time, our culture has developed "a passion for the arts and a quest for quality. This is where our deeper need to consume local products comes 4 into play." Due to our society's need to consume local products and longstanding tradition of alcohol production and consumption, the craft beer industry is rapidly growing. Consumers are constantly searching for creative beers, whether in taste or by name. The new craft breweries popping up are fighting to succeed in a populated market, so they find themselves in competition with one another or with larger breweries to get consumers' attention, particularly for beer names. As a result, the craft beer industry is struggling to come up with creative, original names, leading to a growing amount of trademark litigation. This litigation is expensive and timely, and hurts craft breweries everywhere. The solution seems simple: a push towards collaboration instead of litigation. 1 Andrew Curry, Our9,000-Year Love Affair With BooZe, NAT'L GEOGRAPHIc, Feb. 2017, at 30, 31 (tps//wwwn/ionagphicoaggine/2)17/02/ai-wfl 2 Id. (quoting Interview with Patrick McGovern, Biomolecular Archaeologist, University of Pennsylvania). 3 Michael Reha, Creativiy And Variety: Two ImportantQualitiesIn The EvolvingAlcohol Industry, NEWAD (Aug. 23, 2012), http://www.newad.com/en/2012/08/23/creativity-and-varietytwo-important-qualities-evolving-alcohol-industry. 4 Id. https://digitalcommons.law.uga.edu/jipl/vol26/iss2/3 2 Patel: The IP of IPAs: A Look Into Trademark Infringement in the Craft B THE IP OF IPAS 2019] 251 II. BACKGROUND A. THE BEER INDUSTRY The overall U.S. beer market is currently valued at $111.4 billion, with $26.0 billion of that attributable to the craft beer market, and these numbers are only expected to grow.5 In 2017, the Brewers Association ("the Association") found that craft breweries increased their volume of beer by 5%, and (...truncated)