Who's the Villain?

Update 1.  Innovation has posted their response to Bell's response.
Update 2.  A nice piece at MiBiz covering the fracas (h/t Alan).  More here, here, here, and here.

Let's spend a few paragraphs considering events of the past 24 hours.  It illuminates a few things about business, trademark law, and the folly of over-personalizing the two.  First, the local paper in Asheville, NC put out a sloppy report accusing big, bad 'ol Bell's of bullying local concern Innovation Brewing.

Bell's has filed a federal action against Innovation over the use of its name. Bell's says its unregistered advertising slogan "bottling innovation since 1985" could lead to confusion with customers. While the slogan is used on bumper stickers, it's not present on any of the brewery's beer packaging....

"We are very disappointed," said Nicole Dexter, who founded Innovation in 2013 with her partner Chip Owen. The two came up with the Innovation name after finding creative means of assembling their brewing system.  "Innovation is what we had to do to make everything work," Owen said. (h/t All About Beer)

 This appears to follow a familiar script: a small brewery is just trying to make their way in the world, when along comes a corporate behemoth to crush their dreams with a trademark lawsuit.  If you read further in the article, though, you get more of the picture (though obliquely).  It's actually the small guys who are trying to trademark the word "innovation," not Bell's.  After initially fumbling the response (Citizen-Times: "Bell's founder Larry Bell would not discuss the issue"), Bell's today clarified their position.  Go read the whole thing, which radically alters the story.  This is the key point, though:

We have not, and are not asking them to change their name or their logo. There is no lawsuit. We are not suing them. We have not asked them for money. We have not asked them to stop selling their beer. We are asking them to withdraw their federal trademark application.

There are a few lessons to be learned here.

Trademark Law Creates Conflict By Design
Trademark law is brutal.  The way it works is that anyone can apply for a mark on anything.  One of the stopgaps is that during the registration process, other parties have a right to contest the mark.  There are a lot of marks that, if granted, would substantially damage existing brands.  This is where we are in the "innovation" situation.  Think for a minute what trademarking "innovation" might do to other US breweries--for whom innovation is not only an article of faith, but a regular part of publicity, branding, and labeling material.

That leads to the second important part of trademark law: owners must defend their marks.  So, if Innovation does get the mark for that word, they must protect the mark.  Trademark Office: "the owner of a registration is responsible for bringing any legal action to stop a party from using an infringing mark."  This sets up a case where Innovation could easily look at Bell's use of the word innovation and slap them with a cease-and-desist letter and lawsuit threat.  If a company fails to do this, it can lose its mark if other companies can make the argument it has lapsed into the public domain.  

Trademark Disputes Are Not Personal
There are 3,000+ breweries in the United States making, conservatively, 50,000 brands of beer.  In order to protect their names and brand identities, these breweries register trademarks.  Because of the way the law is structured, this means tons and tons of disputes.  These disputes are not personal--they are the result of the way the law is written.   It creates a catch-22 for breweries on the publicity side: if you don't register your names as trademarks, someone else will, so you risk losing your entire brand identity (which is, obviously, super bad for business).  If you do register your mark, then you have to go out and police it or risk losing the mark.  When beer geeks read into this a kind of malevolence, they misunderstand the logistics of what breweries are forced to do.  Yes, there are times breweries are overly litigious and sue people needlessly--a justified cause for irritation--but mostly beer fans should not be over-personalizing disputes over trademarks. That's just how it works. It's time to let this outrage machine run out of gas.  (Not that I have even the slightest hope that will actually happen.)

Make Sure You Tell Your Story First
One amazing part of this is that Bell's did not tell their story immediately when a newspaper came calling.  I fault the paper for writing an overheated, largely misleading piece, but Larry Bell should have gotten in front of it.  Elysian made a similar blunder after deciding to sell to Anheuser-Busch.  They waited days to put out their own explanation for the story, long after they'd been torched on social media.  There's no way to fully control a story, but man, you have no chance if you don't get your version out there.  Even now, after the clarification, Bell's is still getting hammered. People are still charging Bell's with crimes they have not committed.  This is the problem when you find yourself behind a story--the "narrative" gets established, calcified, and becomes reality.  Bell's may still pull out of this, but they must now spend days or weeks in damage control mode.  

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For those who think Bell's is absolutely in the wrong, let's use an analogous case: the trademark to "Beervana."  It is currently owned by Texas-based Gambrinus and used to hawk BridgePort.  There is nothing horribly sinister about that, but I think most Oregonians would agree that the word should never have been trademarked.  It should have stayed in the public domain where it was of use to all--like "innovation."  I really wish someone had intervened at the time and stopped Gambrinus the way Larry Bell is trying to stop Innovation.