After reading the initial dispute through various Beer related websites, and eventually finding the associated legal claim made to a Court in Massachusetts. Breaking down the main issue is what this article aims to discuss.
The issue is over trademark infringement.
Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the “infringer”, uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence legal proceedings against a party which infringes its registration.
The Legal Complaint can be seen here that is only 18 pages long, and contains a lot of waffle, but has the main points that have upset Bear Republic. So instead of reciting all the main legal mumbo jumbo I can ally the main complaint and issue at hand.
The area of ‘Trademark’ Infringement is never more prevalent than ever in Vancouver right now with the Olympic Games that are currently on. We all know what would happen if a company started selling ‘Koke’ or ‘Panaphonic TV’s’ or ‘Microcoft Software’, there would be legal henchmen at your door within the hour. These are quite obvious ones that we can all agree are wrong, even though we all have some illegal MP3’s loaded our IPODS/IPhones. Okay I’m sure some don’t, but most do..
It appears like the Bear Republic crew have been living in a wind tunnel for the last year or so, as they seem to have only heard about Central City Brewery through 2 drunken statements at a beer event, and an inaccurate beer article. With more microbreweries and brewpubs than ever before it can be hard to know all of them, but seemingly they were not aware of Central City until recently.
Bear Republic have been operating in California since 1996. Though it took nearly 10 years to actually trademark certain brands. Seeing as the market for craft beer in the late 1990’s was not what it is now, is probably why there wasn’t a need 10 years ago to patent the brands instantly.
Though they claim ‘Racer’ is owned by them and being infringed upon, it can be shown they trademarked ‘RACER 5 INDIA PALE ALE‘ in 2005, not ‘RACER‘. Though they seem to think that there has been public knowledge of the RACER 5 Brand since 1996, it would be fair to say that it is only in the last 2-5 years that the brand has become more nationally recognized. In the legal document it shows the beer won numerous beer awards in recent years.
Bear Republic have another Beer that is a Red Ale named ‘RED ROCKET’ for which was Trademarked as ‘BEAR REPUBLIC RICARDOS RED ROCKET ALE‘ in 2005. They claim they have made this brand since 1996. But not it is not RED ROCKET that is trademarked but a longer more convoluted version.
The defendant in this matter is Central City Brewing is in Surrey BC, which is about 20 kilometres outside of Vancouver. The brewery has only recently started distributing their beers across Canada and is now distributed into the United States. The brewery is famous for one beer, that is the IPA that is in the Beer Advocate TOP 10 IPA’s in America. The IPA is comparable to many quality West Coast IPA’s. The beer is without doubt the best IPA in Canada, and those in the West Coast beer community have known about it for the last few years.
Central City brands their beers with ‘RED RACER’ with the style of beer after it.
The main issue at hand is Central City ‘RED RACER’ brand that is seen by Bear Republic as being too close to its own branding of RACER 5 and RED ROCKET ALE. The area of infringement comes with consumers who mistakenly pick up ‘KOKE’ or buy a ‘PANAPHONIC TV’ instead of COKE or PANASONIC. BEAR REPUBLIC claim that Central City have ‘Deliberately’ used the words ‘RED’ from Red Rocket, and ‘RACER’ from RACER 5 IPA to confuse the public into buying their beers.
The next lawsuit is going to be against the Toronto Transit commission that have the slogan ‘Ride the Red Rocket’. Whenever I hear RED ROCKET I instantly think of a Toronto Subway System, as do many Canadians who have lived in or know about Toronto. I’m sorry to say there is more than 1 RED ROCKET out there.
SO here comes the part as to how Central City became known to Bear Republic, which is actually the funniest part of the document. Bear had two different Beer industry people come up and ask for the Red Racer in the CAN at the Great American Beer Festival in Denver in 2009. Both times the questions at the GABF were for RED RACER in Cans, not RACER 5 in Cans. At the time it was confusing to the Bear Republic guys at the festival and they thought they had mis-heard the questions.
The next part of confusion occurred with a beer writer Norman Miller in Boston whom wrote an article whereby he stated ‘RACERS are coming to BAY STATE’ referring to Central City ‘RED RACER’ and not Racer 5. But what pissed the boys at Bear Republic off is that Norm then goes onto call RED RACER in cans RED ROCKET. But a point here is that throughout the article the author kept confusing the names between RACER & ROCKET himself, and thus obviously didn’t re-check his article before publishing it. Those who have never done that please raise your hands?
One point of major difference here is in the RED RACER products all come in cans, where as BEAR REPUBLIC RACER 5 comes in bottles.
The area that I feel is the only valid point in the argument is to do with the FONTS that are used in RACER. You can view the photos of RACER to see that both products have similar fonts. I am not sure if that is standard FONTS that come from any Graphics program or if they both happened to have the EXACT SAME FONT from the different Graphic Designers. YES the FONT OF RACER does look similar on each product.
YOU Be the judge ??
The area of this ‘SUIT’ that is flimsy, and I can say that without being a litigating lawyer, but an analyst that reads lots of documents is that the legal document keeps referring to ‘RACER’ as being the trademark. When its ‘RACER 5 India Pale Ale‘ and ‘Bear Republic Ricardos Red Rocket Ale‘.
Paragraph 42 states: “On information and Belief, Central Citys disregard of Bear Republics rights and use of RED RACER Mark shows Central Citys willful intent to misappropriate Bear Republics goodwill be deceiving the consuming public including beer distributors“.
ON DECEMBER 15th 2009: BEAR REPUBLIC SENT not a Christmas Card but a Cease and Desist Letter to Central City Brewery. Basically telling them to STOP as we have this BOSTON LAW FIRM on our side.
ON JANUARY 8th 2010: CENTRAL CITY through their team of laywers returned Serve with a ‘NOT INTERESTED’ Letter. So here we go.. its game day..
Paragraph 51: This is a duzie.. Guess the Law Firm was thinking about their Christmas Party and not actually writing a professional proof read Letter: “Bear Republic reasonably believes that it will be damaged by the actions of Bear Republic” not sure if that was a FREUDIAN SLIP or not, but I agree with this statement.
To be fair to both breweries I enjoy both of their products, but I do find the Central City RED RACER a better IPA, and with it being in the TOP 10 IPA’s in North America I am not the only one. The issue at hand is a small matter that did not need Bruce Falby of DLA PIPER in Boston to spend his time on this. There does not appear much merit in this claim, as both products although in the same product category, and will likely share the same shelf space are not confusing to those who are aware of what their buying.
Based on two questions at a large beer festival, and an ill-checked article by a well informed beer writer it has come to a court battle. Sending a legal Letter with multiple legal names on the letter head is always going to get a defensive reaction out of the company? Keeping in mind that both breweries are not that large, and the matter will likely never go to court. (Was I wrong.. Bear Republic persisted with the team of bad lawyers and lost).
I enjoy both brewers beers, and the intention of this article is to make a wider audience aware of the ‘misguided’ Legal dispute that has little merit in many peoples opinions.
Until the matter is resolved I am going to abstain from any of the Bear Republic products, as I feel there were better methods to resolve this issue. Apparently I’m not the only one in BC not buying Bear Products.
.. i first saw this on June 10th 2010.. Legal Decision here
January 25th – 2012 – We now have an Update Red Betty IPA..