Wednesday, May 22, 2013

6* or *9 - Brewery War over Logo Similarities

First off, I must be upfront.  I know just about nothing about the law except mortgage contracts appear to make spotted owls homeless, and People's Court, while a better basis for law than Night Court, isn't exactly the Supreme Court.

I also don't have a dog in this fight, although the Leafs fan in me wants to cheer for the underdog, who I hope won't choke late in the deciding game.  But in the spirit of this blog, let's look at Magic Hat's and West 6th Street's battle over labeling in a lighthearted way.  And while I'd love for the two breweries to hug and make up; please don't band together and sue me.

If you're looking for a more mature look at this case, please check out Queen City's Drink's post on the subject.  Also, another must read for how to use social media is Ashley V Routson's (more commonly know as the Beer Wench) post on keeping your battles off social media.  This is more applicable for when someone wants to take me to task for being an idiot about law, but it's all great advice.

Here's the four claims and my rating for how strong of an argument and then trivial opinion about said claim.  And since nothing makes people take you more seriously than when you use a gimmicky rating system - this post will use Wapner's in honor the Honorable Joseph A Wapner, of people's Court fame with a sliding scale of 0-5.  With 0 being a sound, reasonable, and justifiable claim and 5 Wapners being a chair toss away from the Jerry Springer show.

Claim 1:  Magic Hat has owned trademarks on #9 and the Design since 1995 for beer and 2007 for ale.
My Uneducated Thoughts: This is a strong claim backed by the US Patent and Trademark Office.  In other news, and claims probably trimmed off to save on legal fees, water is wet and the sun rises in the East.
Wapners: 0.  This is easy to prove and defend.

Claim 2: West Sixth Brewing Company began selling beer in 2012 under "trademarks, designs, and trade dress that closely resemble and are confusingly similar to Magic Hat's #9 Marks, designs, and trade dress."
My Uneducated Thoughts: Using the images from Beer Pulse let's look at the differences.  Queen City Drinks has the West Sixth Logo inverted (but sadly, not communicating a la Top Gun) for batman's eye view.


6's and 9's, by the way our language is used are weirdly inverses of each other.  Much like b and d are mirrors, and p and b and inverted. 
The font shares the extra bulbous end on the loose end of the number.
Both have white eight pointed stars

Colors are totally different both in scheme and in difference between colors.
White stars have different shapes and locations within the logo
Magic Hat's logo looks like a drug trip or a 1960's album cover.
West Sixth Brewing has large font surrounding their encircled number
Magic Hat's 9 is centered and has smaller font in two colors in their surrounding border
There's no number sign for West Sixth Brewing

Wapners: 3.  As pure logos, they don't appear very similar but the dingle-berry on the 6, er, inverted 9 as well as the star begs the question of if there was influence.

Claim 3: "West Sixth’s actions constitute trademark and trade dress infringement upon Magic Hat’s rights, for which it is liable to Magic Hat."
My Uneducated Thoughts:  Obviously, this is an "if 2 is true, than 3 must be true" logical argument.  #3 is also the difference between 9 and 6, if anyone cares.  I thought it was interesting, but it's probably not, so I'll stop.
 Wapners: 3.  This is walking us down a path to what is the root of all evil.
Claim 4:."Accordingly, Magic Hat seeks damages and injunctive relief under state and federal law to remedy the substantial infringement by West Sixth." 
My Uneducated Thoughts:  Makes sense - nobody sues for leftover hops.  I find the word "substantial" interesting because if it's found that this was all innocent, this claim seems like it falls apart.  Looking at real packaging (posted on Beer Advocate by Backbaybrewer):
Uh, I think some of the "substantial" might drop off when looked at this way. 
Wapners: 4. Without understand any nuance in law beyond driving 20+ over the speed limit is a two point ticket (I think, asking for a friend) I don't see how this passes based on that one specific word.

Predicted Verdict: I hope this gets settled amicably, not just for these two breweries but for craft beer in general.  We shouldn't be fighting in public - what will the children think, and all that jazz.

I'd also love to see these guys do a collaboration and call it "69" (because, it's hysterical).

West Sixth is trying to bring some funny to this, which can backfire since it is quite serious while Magic Hat seems to be letting their lawyers talk.  Going towards court, as much as I love the Malcolm Reynolds approach to this, I think Magic Hat is taking the smarter approach.

At the end of the case, I think West Sixth will be forced to make some changes, but not as many as Magic Hat is wanting.  And I don't think Magic Hat will receive the monetary outcome they want, although their winning the case may be enough to close the smaller brewery.

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