IP Considerations for the Food and Beverage Industry Series: Intellectual Property Considerations for Companies in the Craft Beer Industry

With the recent explosion of the craft beer industry, competition is fiercer than ever.  In 2017, there were nearly 1,000 new brewery openings nationwide.  With increased competition comes an increased need for breweries to distinguish their company in a crowded marketplace.  Intellectual property is one way that brewers can protect the uniqueness of their brands and their beers.  There are several different types of intellectual property protections craft breweries should consider.

Trademark Protection

Trademarks cover unique words, phrases, designs, or symbols that identify the source of a product.  A product’s appearance or configuration (such as unique bottle shapes) is also protectable as trade dress.  A strong, recognizable trademark can help distinguish a craft beer product from other similar products in the mind of the public.  Trade dress is particularly important in the craft beer industry, as it helps consumers identify products from a distance (such as when viewing them on a store shelf or cold case).  The USPTO issues trademark registrations (which, in certain instances, can cover a product’s trade dress), that last as long as the mark is in use.  Common law trademark rights also accrue upon use, even without a formal registration.  

Trade Secret Protection

Trade secret protection is another form of intellectual property that protects any confidential business information providing a competitive advantage.  A trade secret could encompass anything from secret beer recipes and formulas or brewing processes/methods to confidential information pertaining to sales or distribution of beer.  The formula for Coca-Cola's soda/original soda (or something generic that describes the beverage) and KFC’s secret recipe are famous examples of trade secrets.  Trade secrets do not require registration with the government and remain protected for as long as the information remains a secret.  For that reason, it is important for breweries to consider if they have any valuable trade secrets and take steps to ensure that any such information is protected and remains secret. 

Patent Protection

A United States utility patent is obtained from the U.S. Patent and Trademark Office (“USPTO”) and protects any new or improved product, process, or machine.  While beer brewing itself is an ancient art—archeologists noted references to brewing in a 3900-year old poem from Mesopotamia—it is possible to obtain patent protection for any new discovery, particularly new methods or processes related to brewing or serving beer.  In exchange for a description of the invention, the USPTO grants inventors the right to exclusively use their invention for a period of time.  The USPTO also grants design patents for the protection of ornamental designs, which can be a useful tool for protecting innovative bottle designs, packaging, displays, glassware, labeling, and tap handles, and can help brewers keep others from taking their unique “look and feel.”  Design patents are often a useful early step in creating a product’s unique trade dress. 

Copyright Protection

Copyrights protect original works of authorship including literary, dramatic, musical, and artistic works, but generally cannot protect plain facts or listings of ingredients.  A copyright exists automatically as soon as the artistic work is fixed in a tangible form and does not require registration with the U.S. Copyright office unless the copyright owner seeks to enforce their rights through litigation.  While beer recipes themselves are generally not protectable, craft beer companies create many other types of artistic works—pictures, labels, books, songs—that may benefit from copyright protection. 

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