I can’t actually remember the first time I met Arne Johnson or had one of his beers. I do know that White Knuckle is still one of my favorite California Beers. Back when I worked at the Pizza Port in Solana Beach, there were always stops at Marin Brewing Company on our way to Booneville and the Anderson Valley Brewing Company for their beer festival every year.
On these same trips, we would also stop in Santa Rosa and visit Denise Jones when she was brewing at 3rd Street Aleworks. Denise made excellent beers in Santa Rosa and has continued that brewing excellence working at Moylan’s Brewing Company. They are both Head Brewer friends of mine. It’s quite possible (as of today) that they USED to be Head Brewer friends of mine. Filing suit against their employer has a strange effect on friendships. I’m pretty sure of that. I also know that Head Brewer’s don’t sue other Head Brewers. However, from time to time, Breweries are forced to protect their intellectual property and branding. It’s the ugly side of the business that breweries (and all small businesses) hope to avoid.
On Thursday, we heard from hundreds of Craft Beer Enthusiasts who were outraged that we needed to sue anyone let alone another Craft Brewery. It was one of the most gut wrenching vitriolic laced days I have ever been a part of.
Did we want this to happen? Hell no. But after all manners of conversations dating back to April of this year, we had reached an impasse. So last week Port Brewing LLC filed a Lawsuit for Trademark infringement against Moylan’s Brewing Company. The North County Times (a San Diego based newspaper) published an article detailing our filing and the reasoning behind it. Since Thursday is behind us and so much of the hate continues to fester on, we have decided to put some of the facts about our decision here online.
We understand and respect that Moylan’s Brewing Company has been using Celtic Based themes and images for the past 15 years of business. This has never been part of our concern. It was also detailed that Moylan’s had at one time used a Silver Cross as a tap handle design. This is a picture with the original Moylan’s tap handles here (photo courtesy of Moylan’s Brewing Company):
You’ll also note that on the right side of the picture, there is a newer version of a Celtic Cross tap handle. This is the tap handle that Port Brewing LLC believes infringes on our Trademark in as much as we have been using a highly stylized Celtic Cross tap handle since 2008 for our Lost Abbey beers.
From the moment we first contacted Moylan’s Brewing back in April, it has been our intention to settle this amicably while at the same time not having our trademark put at risk or devalued. Their new Celtic Tap handle has been our singular concern as we believe it was only put into service earlier this year. We asked for (and never received) any assurances that the new stylized handle predates our first usage of our Lost Abbey Celtic cross design early in 2008. We searched their website, facebook page and even the internet to no avail. We could not find an earlier usage for the stylized Celtic Cross tap handle which looks like ours.
Yes, it’s true. The Moylan’s silver cross handles (on the left of the photo) predate both the founding and creation of The Lost Abbey and our highly stylized tap handle that we put into use in 2008. We have never once disputed this fact. This was part of our original conversations. What has never been answered in our numerous dialogues with them is when they ordered and began using the tap handle (on the right side of the picture) that violates our trademark.
Please check our FAQ’s which we compiled to address this issue. At this time, we are waiting for a response from Moylan’s Brewing Company and still are open to a resolution that neither weakens nor devalues our Lost Abbey Trademark stylized Celtic Cross Tap Handle. Tap handles are a big point of our branding for both our Lost Abbey as well as our Port Brewing beers. In fact, we have actually applied for the trademark to protect the “Flip Flop” tap handle design that we use for our Port Brewing beers as well. The bigger and healthier the Craft Brewing business gets, the harder it is to be unique and distinctive. Intellectual Property is something that all breweries (small and big) need to value. It’s one of the biggest assets we can own.
Lastly,filing paperwork with the Federal Courts does not mean we are obligated to sue Moylan’s Brewing LLC. I can tell you that we at Port Brewing and The Lost Abbey are not giddy with excitement about this filing. When I look out my office window, I know the 12 people who work at this brewery aren’t high fiving each other about their owners decision to do this. But they understand that Intellectual Property is a big part of this brewery and the beers we sell.
So yes, Port Brewing LLC filed suit against Moylan’s Brewing LLC. We understand that owning a Craft Brewery comes with a spirit of Collaboration not Litigation. And paying lawyers to settle things isn’t a great use of hard earned profits. Every brewer I know would rather use the money to add additional capacity to brew more award winning beers. But this is a business. And sometimes difficult decisions have to be made. This is not an issue of Goliath suing David. Rather, at this time, it is a solely two small passionate craft breweries who happen to disagree looking to protect their intellectual property. Ultimately, a compromise that doesn’t involve the courts may be reached. And then we can all go back to focusing on doing the things we do best.
It’s unfortunate that so many people are unfamiliar with how intellectual property laws work. And instead of educating themselves about the process, they need to lower themselves to namecalling. Additionally, while craft beer is an art, it’s patrons often forget that it’s still a business. Thanks, Tomme for being so open about this and more importantly, thanks for the great beers!
Thank you for addressing what has become an extremely controversial issue in the beer world. I think you have made your case quite well in this post. Personally, I do think the right-most Moylan’s tap handle looks confusingly similar to your own. Whoever was not using this design first should simply agree to C & D it. I see nothing wrong with reverting to the earlier Moylan’s desgn.
As a brewer and soon to be brewery owner, I completely understand why this is important for Lost Abbey as a business. I applaud you Tomme for stepping up and doing what is important for your business.
But … isn’t this all just as simple as one question?? For my understanding of trademark law, and I know a bit since I am presently and have in the past received trademarks, it seem obvious…
How long has Moylan’s Brewing Co been using their new ‘stylized celtic cross’ tap marker?
Tomme,
All legal issues and business concerns aside, what about basic ideas of right and wrong?
I, for one, in that spirit of Collaboration not Litigation, would like to see Celtic Cross taps in Nor and So Cal pouring forth Serpents & Dragoons Stout. (Should I TM that?)
Thanks for the info Tomme. Its really sad that things have to end up with lawyers involved, but Lost Abbey IS a stylized Celtic Cross. 100% behind your tough decision.
The side-by-side comparison of the two tap handles that is displayed on the above referenced FAQ page is extremely deceptive. It is a digitally altered image, as the Moylan’s tap handle is not actually fixed to that faucet. In reality, the Moylan’s tap handle is easily TWO-THIRDS THE SIZE of the Lost Abbey handle. The page even references their “likeness in size”. If you want to work to clean up your tarnished image, you would be wise to do it honestly.
Chris, no alteration was made to the appearance of either tap handle in the comparison photo. The only change was to remove the backgrounds in the photos, rotate them so they stood upright and digitally place the handles atop spigots to demonstrate how similar Moylan’s handle is to Lost Abbey’s. (If you click the comparison image you will see the “non-tap” version.) Further, trademarks cover designs, not the size at which the design is produced. If you knock-off Target store’s logo and use it as your own, you are infringing on Target’s trademark whether its 1 inch or 10 feet tall.
Abbey Scribe, I can see that “the only change” you’re describing is actually the exact same “digital altering” that Chris has indicated– and I agree with him that it is misleading. To clear up any confusion, I think you could easily remove the comment regarding “size” on your caption below the photo in the FAQ (although you could keep the “general shape and overall design”), and even give some acknowledgment that you have altered the photo of the Moylan’s handle to show what it might look like on a spigot. Or even better yet, you could show the two tap handles next to one another taken in the same photo, or at least presented in a way that *does* capture the (significant) size difference, if the Moylan’s handle is actually 2/3 of the size of Lost Abbey’s.
In any case, I know this is not an easy situation for anyone, and I hope you guys can all work out a swift and reasonable compromise. Good luck to all.
Valid points, Chris (Quiroga). We have replaced the earlier photo with one that shows the handles without a tap spigot and noted that the photos have been scaled to show the similarity of the designs. Again, however, I should emphasize that the size of the handle does not affect the trademark. As you can see with Moylan’s earlier handles, tap handle designs are often produced in multiple sizes to allow them to fit different tap line requirements. Regardless of the size, the original design is still protected.
Yup. Understood (about the size of the tap handle not really being an issue). Just thought it was misleading, and you probably don’t want people to think you’re intentionally manipulating it without their knowledge to try to sway your argument. Good for you guys, making the change to try to eliminate any confusion there.