A trade mark dispute in the craft drinks sector illustrates the need to enforce trade marks early.

Trade marks and branding in general are extremely important to the drinks industry, where the consumer’s first purchase of a product is often made without having tasted it.

The UK craft beer sector in particular is comprised of a multiplicity of start-ups that rely on distinctive names and graphic design to stand out from the ever-increasing competition, as new breweries reportedly open at a rate of three a week.

BrewDog is perhaps the greatest branding success of the UK’s craft beer industry. Founders James Watt and Martin Dickie have achieved a great deal since founding the company in 2007, thanks to distinctive branding, a self-proclaimed “punk” ethos and a succession of attention-grabbing stunts and controversial statements.  BrewDog has expanded from a small brewery in Aberdeenshire to share issues, an international chain of bars and their first US brewery in Ohio within a decade.

BrewDog’s most recent controversy revolves around branding. BrewDog has started a distillery under the name “Lone Wolf”, initially offering gin and vodka.  Unsurprisingly, in 2016 it registered various trade marks for the name and logo in respect of spirits (class 33), but also in other classes including bar services (class 43).

However, in January 2017 a new craft beer pub opened in Birmingham’s Jewellery Quarter called “Lone Wolf”.  Following a letter from BrewDog’s lawyers it announced that it was changing its name to “The Wolf”, resulting in BrewDog being criticised by craft beer fans for acting in an apparently corporate, non-“punk” manner.

WAB Comment

It should not be entirely surprising that, regardless of its unconventional corporate philosophy, a public limited company that has invested in a portfolio of registered intellectual property rights should seek to enforce them.  If it did not, its ability to rely on those rights later could suffer.

It does not appear that the owners of the Lone Wolf pub sought to register their own trade mark, but if they had done so and BrewDog had acquiesced in its use for five years, it would have been prevented from enforcing to prevent further use or obtaining a declaration of invalidity (Article 48, Trade Marks Act 1994).

Similarly, even if Lone Wolf continued to trade under that mark but did not seek to register it, had BrewDog knowingly acquiesced in an infringement of its registered mark, common law principles might have limited its ability to take action preventing the infringement later.

In such circumstances, it can be useful to make those innocently infringing a registered mark aware of it as early as possible.  If addressed quickly, a settlement can be reached before the infringing brand has become recognised and valuable.

It can be hoped that the change of name will not be very detrimental to the relatively new “Wolf” pub.  Indeed, its owners might usefully exploit the story for some free publicity, which is exactly the type of cost-effective marketing on which BrewDog built its own success.