After getting sued over trademark infringement, the craft brewery Clown Shoes changed a beer label to imply death to trademark attorneys.
This blog post is for informational and entertainment purposes only. It is not legal advice. If you have specific legal questions, you should consult with an attorney licensed in your jurisdiction
The craft brewery Clown Shoes renamed their VAMPIRE SLAYER beer to UNDEAD PARTY CRASHER. The Texas-founded brewery also changed the beer label to imply death to trademark attorneys.
“In a world full of uncertainty, hardship, and people trying to hold us back, do we need the undead and trademark attorneys too?
Clown Shoes says ‘No, die, monsters die!’
Forces of darkness brought about a change in the name of this beer which was released to celebrate our second anniversary, but it still sports signature dark malts, holy water, and malt smoked locally with hickory and ash.”
As a trademark attorney passionate about alcohol regulations, I found this beer label charming. In fact, I bought a 4-pack for the law firm Christmas gift-exchange (oh and some for myself).
While the new beer label is funny, it’s also a valuable lesson on why you should trademark beer names.
Clown Shoes made a beer under the name VAMPIRE SLAYER. TI Beverage Group made a beer under VAMPIRE PALE ALE. Neither company filed for federal US trademark. TI Bev. Group sued Clown Shoes for trademark infringement.
It appears TI Bev. Group started selling their beer 6 months after Clown Shoes had been selling their beer. In the United States, trademark law is based on use in commerce. Therefore, Clown Shoes may not have been infringing TI Bev. Group. From the facts available online, it's possible Clown Shoes would have won the case on summary judgment if they had prior use.
Instead of fighting for their trademark, Clown Shoes changed their beer name. The craft brewery is a small operation and did not want to pay litigation fees.
By obtaining a federal trademark, you help protect your beer against other applicants and have a prima facie case against trademark suits against companies. This strengthens your position against parties which want to sue you, helping to the avoid the cost of prolonged lawsuits.
It is cheaper to fight out issues of trademark infringement in the Trademark Trial and Appeals Board (TTAB) than it is in federal district court. We have administrative courts because they’re faster, cheaper, and more efficient than processing every due process claim through federal district court (or at least that's the aim). However, it can also be cheaper to rebrand or settle.
When advising craft breweries and distilleries, I always stress the cost-benefit analysis.
Is the cost of a lawsuit more than the cost of a clearance search to find anyone else using the name? Yes, please contact an attorney to help you avoid the cost of future litigation.
Is the cost of defending the brand name more than the cost of re-branding? As the business owner, that's a question you need to ask yourself. Sometimes it's easier just to change the beer label.
If you're wondering how UNDEAD PARTY CRASHER tasted, it's a good Imperial Stout that pairs well with lamb chops and a trademark litigation brief.
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