Another Craft Beer Brand Gets Bullied To Death Over Shaky Trademark Claims

from the mark-and-stormy dept

The warning bells for the craft beer industry have been sounding for some time now, but the trademark disputes keep on coming. Even as trademark registrations in craft beer grow exponentially and intellectual property attorneys themselves are predicting an explosion in disputes on the horizon, the legal cases and threat letters have begun to grow. What once was an industry known for cooperative and congenial attitudes on trademark issues has devolved into corporate protectionism. But inter-industry disputes aren't the only concern, as the explosion in the craft beer industry has also invited trademark disputes from those outside of the industry.

Trademark protectionists can now put another pelt on the wall, that of the Dark and Stormy Night beer made by Picaroons Traditional Ales.

The Fredericton-based craft brewery announced through social media it's putting the popular organic dark wheat beer "to rest" after losing a lengthy legal battle with another company over trademark infringement. The Facebook post does not name the other company, but Picaroons Traditional Ales owner Sean Dunbar confirmed it's liquor giant Goslings.

Picaroons received a cease and desist order from Goslings, saying the beer infringed on its Dark 'n Stormy cocktail, made with Gosling's Black Seal Rum and Gosling's Stormy Ginger Beer.

"We tried, you know, saying 'Please,'" Dunbar said. "We tried arguing that the two products really didn't have anything to do with each other."

Those arguments didn't work. And I would think such arguments shouldn't even be necessary for a couple of reasons. First, and, damn it, I'm going to keep shouting about this until the USPTO finally listens: not all alcoholic drinks compete in the same marketplace and trademarks should afford more subtelty to those market distinctions. Wine, beer, liquor, cocktails are all distinct items for a shopper. With sufficient differences in names and branding, nobody is going to mistake a wine company for a beer company, or a beer company for a liquor company. "Dark 'n Stormy" and "Dark and Stormy Night" aren't completely distinct, but they're distinct enough when placed on different types of drinks to be discernable to the common consumer.

And about that "Dark and Stormy Night" brand name itself. Dunbar claims he got the term for his beer from a Peanuts comic strip, which is perplexing to me because "It was a dark and stormy night" is a cliche opening for a work of fiction. That's what it's known for and, in some circles, it's used essentially as a joke that references a lack of creativity. A dark 'n stormy cocktail, however, references the stormy weather in the Carribean where the term was coined. I personally never would have made the connection from the beer's name to that of the cocktail, and I'm not sure many others would have either.

But, rather than fighting this out in court, Picaroons decided to cave and kill the brand.

Picaroons said in its Facebook post that the brew at the centre of the dispute had been in production for 11 years.

"We certainly did not go out without a fight, though after months and months we've officially lost the battle and are now retiring our lightest dark beer."

Dunbar said the company worked with a local trademark lawyer and "would have loved to defend it to the hilt," but decided taking it all the way to court wasn't worth the expense.

"Good bye old friend," the Facebook post said. "RIP."

And so another craft beer brand commits suicide rather than fight for its life in court, proving once again that trademark bullying works.

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Filed Under: craft beer, dark and stormy, trademark
Companies: goslings, picaroons traditional ales

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  1. icon
    Anonymous Anonymous Coward (profile), 12 Sep 2017 @ 5:58pm

    Alternatives to Folding

    Couldn't they have just renamed it? Dark and Thundery Night, for example. A tag line of formerly Stormy might rock the boat though.

    reply to this | link to this | view in thread ]

  2. icon
    TechDescartes (profile), 12 Sep 2017 @ 6:58pm

    The USPTO Didn't Stop the PTA

    ...I'm going to keep shouting about this until the USPTO finally listens...

    Tim is so worked up over trademarks and beer that he apparently forgot Fredericton is in Canada.

    BTW, why was the PTA selling beer?

    reply to this | link to this | view in thread ]

  3. identicon
    Lawrence D’Oliveiro, 12 Sep 2017 @ 7:37pm

    Cliché Opening For A Work Of Fiction

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 12 Sep 2017 @ 11:25pm

    looks over to the ad in the sidebar "Beer Lawyers" It's learning...

    reply to this | link to this | view in thread ]

  5. icon
    orbitalinsertion (profile), 12 Sep 2017 @ 11:47pm

    Re: Cliché Opening For A Work Of Fiction

    No, it's Bulwer-Lytton to blame for the "popularization" of the phrase (in a Paula Nancy Millstone Jennings sort of way), although the first noted use in prose is by Washington Irving, in a rather equally good sentence.* I don't think it was claimed to be original to Peanuts, but Charles Schultz used it several times IIRC, when Snoopy is trying to write his great American novel or whatever. I am sure that is where i first became aware of it, at age two or three, unless someone managed to use it in a television program at the time.

    The thing about catchy things is, after a while, most don't know the thing from the original. (And then they will argue, incorrectly, with the next crowd, who know it from yet somewhere else, over where the thing originated. This is always a hoot. Particularly when an original source is easily discoverable.)

    *Wherein Irving mocks the Harlem (but calls it famous) for being denoted as a river rather than a creek, when in fact, it is not a stream at all.

    reply to this | link to this | view in thread ]

  6. icon
    orbitalinsertion (profile), 12 Sep 2017 @ 11:54pm


    September 13, 2017 at 06:25 (1505283922), the advertising algorithm became self-aware...

    reply to this | link to this | view in thread ]

  7. icon
    Stephen T. Stone (profile), 13 Sep 2017 @ 12:54am

    Re: Re:

    [hums theme from The Terminator]

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 13 Sep 2017 @ 1:14am

    Re: Alternatives to Folding

    How about a stark and dormy night?

    reply to this | link to this | view in thread ]

  9. icon
    Chris (profile), 13 Sep 2017 @ 6:33am

    It's not original to Peanuts, but that was my first exposure to the phrase. It wasn't until decades later with the birth of the internet and the ability to research little things right when they pop into mind that I learned its origin. Charles Shultz used it several times referring to Snoopy's attempts at writing. I guess one has to be of a certain age, and a Peanuts fan, to remember it.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 13 Sep 2017 @ 7:37am

    Oh well RIP craft beer and Up barriers to entry

    It was a dark and stormy night, when the ides of march went gently into that good nigh

    reply to this | link to this | view in thread ]

  11. icon
    idearat (profile), 14 Sep 2017 @ 7:11pm

    If you already drink Dark & Stormys..

    There probably is a segment of the population who would not make a link to Gosling's when seeing the name of the beer, but there are those that will.

    I do enjoy a Dark & Stormy, and while I've tried it with other rums, it really is best with Gosling's. So it's understandable when I read the article I saw the name of the beer I immediately pictured it as a potentially a beer from Bermuda, where Gosling's is from.

    Wouldn't this be exactly why you would object to this kind of similar naming of your trademark? People who have no knowledge of your original product would of course not associate it when seeing the similarly named product.

    I can go into a bar and order a "Dark & Stormy" ( when said out loud the differences between &, and, 'n, are lost ) and expect to get a rum and ginger beer cocktail. If I was handed a beer I would be confused and disappointed.

    reply to this | link to this | view in thread ]

  12. identicon
    Andrei Mincov, 19 Sep 2017 @ 10:12am

    Which is why the lesson is: if you start a beer brand without having secured trademark rights in it, you should be prepared to lose your brand. With beer, the brand IS the business. The brand is what people are buying. Nobody can truly distinguish between thousands of variations. It's the brand that sells. By not owning the most valuable asset in your brewery, you're just not being serious about your business.

    Andrei Mincov
    Founder and CEO of Trademark Factory® /, the only firm in the world that offers trademarking services with a predictable, guaranteed result, for a predictable, guaranteed budget. We can help you register your trademarks with a free comprehensive trademark search, for a single all-inclusive flat fee, with a 100% money-back guarantee.

    reply to this | link to this | view in thread ]

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