Updated on May 12: It’s another trademark issue: one brewery needing to change the name of a beer at the behest of another brewery.
Three Magnets Brewing has changed the name of its flagship IPA to comply with a cease and desist letter from another brewery. The beer formerly known as Rainy Day IPA is now 3Mag Rain IPA.
The Washington Beer Blog received an official statement (resembling a press release) from Three Magnets Brewing. For those unfamiliar, Three Magnets Brewing opened in Olympia in November of last year. Significant excerpts from their statement are below explaining their side of the story.
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Three Magnets did not mention the second brewery by name in the statement that we (and presumably other media outlets) received. Still, to those familiar with the local beer and brewery scene, it was pretty obvious that the second brewery was Rainy Daze Brewing of Silverdale.
The confusion at the heart of the matter: an established brewery named Rainy Daze that makes IPA, and a beer from another brewery named Rainy Day IPA.
Rainy Daze Statement
Rainy Daze Brewing did not put out an official statement. I did, however, talk to Mike Montoney, the owner and brewer at Rainy Daze, about the situation. Mike explained that there were conversations between the two breweries about the situation, but in the end he felt the need to protect his brand and business. Paying an attorney for legal counsel, and to issue a cease and desist letter, was not at all the tact he hoped to take.
“There are two sides to every story and I only hope that the people who know me understand that I tried,” said Mike. “It was hard for me to take that road. It cost me money and time that I don’t have.”
“After almost three years in business, I feel that all the hours of hard work to build a brand are starting to pay off,” said Mike. “This whole Trademark issue that we took action on was not intended to torment Three Magnets. It was, just plain and simple, to protect what I and my family have sacrificed so much for over the last three years. I hope we can all just move forward.”
Three Magnets Statement
The following excerpts come from the statement we received from Three Magnets Brewing:
“Three Magnets Brewing Company’s flagship beer, Rainy Day IPA, named after iconic Olympia record store Rainy Day Records, will change its name to 3Mag Rain IPA, and to keep brand consistency, Sunbreak IPA will change its name to 3Mag Sun IPA.”
“In early April, we received a phone call from another brewery requesting that we change the name of our Rainy Day IPA, citing that it was too similar to the name of their brewery, and was causing confusion in the marketplace. While deliberating how to respond, we ran into the owner of the other brewery the following week at the Craft Brewer’s Conference in Portland, OR.”
“We shared the story behind the beer – it was named after Rainy Day Records, a record store that has been in Olympia since the 1970’s…”
“We conveyed that we wished to try and search for an amicable solution that would retain both companies’ hard earned brand equity, while potentially being beneficial to both parties. We agreed to follow up with each other following the conference to discuss further.”
“At the end of April, the other brewery reached out to us and made it clear they were not interested in compromise, and insisted that we change the name of the beer. We asked to have until the end of May in order to have time to develop a well thought-out transition plan to mitigate any potential brand damage. The other brewery was hesitant to this idea, and said they would check in with their lawyer.”
“A week later, we received a letter from their lawyer, dated April 30, to immediately cease-and-desist calling our product Rainy Day IPA, due to violating their common-law trademark. Failure to comply within 10 days would result in legal action, which could include being sued for all profits we had made from our Rainy Day IPA…”
“…We do recognize the similarity in names, and we very much respect their desire to protect their brand equity in an ever increasingly competitive market. That being said, we are disappointed that they declined a great opportunity to work together to see if there was a solution that could benefit both breweries. And we are even more disappointed that we were not afforded, what we considered to be the minimum reasonable amount of time necessary, to rebrand and transition to a new brand name.”
“But we won’t let this situation ‘rain on our parade’. We are instead going to turn this into a positive! We are starting with a rebrand of our IPA line. An emergency meeting was called between the brand specialists at Three Magnets and Whitewood Cider Company, and we are very pleased with the outcome. The beers, formerly known as Rainy Day IPA and Sunbreak IPA, will now simply be referred to as 3Mag Rain IPA, and 3Mag Sun IPA. The beers will remain the same recipe, and we will still offer it to our customers in the South Sound, Tacoma, and Seattle markets. We will be rolling out the new brand identity over the coming months.”
“We have asked all of our wholesale accounts to change their tap lists to reflect the new name, updated all references to the beer on the web, and updated all in-store promotional material. Rainy Day IPA is officially dead. But to quote the great Obi-Wan Kanobe, ‘If you strike me down, I shall become more powerful than you can possibly imagine.'”
Nope, can’t figure this one out: https://washingtonbeerblog.com/rainy-daze-brewing-wins-favorite-beer-award-at-gig-harbor-beer-festival/
😉
The other company is full of jackasses. That’s what I think.
Oh, and they might want to rethink the 3M, too. After all, somebody might think it’s some kind of cellophane tape instead of beer.
This nonsense has got to stop.
ITT: an upstart Washington brewery willfully and knowingly infringes upon an established brewery’s DBA, gets asked to stop and then cries about it. Also a man named Brodie puts on a marvelous display of ignorance.
Squabbling over beer names in the craft brewing industry goes against what (at least in part) the industry is about: community. It’s frankly just silly. It’s like Starbucks trademarking the word “Reserve.” I have a couple favorite beers from two breweries, one in Seattle the other in Portland, named Proletariat. Why haven’t they gotten their lawyer involved? Hopefully because they don’t give a damn and know it doesn’t really matter.
Amber, I think this is more akin to Tully’s coming out with a new blend called Star Bucks.
So as I read it:
“We were entirely in the wrong for naming our beer with a nearby brewery’s trademark, and not just a brand from that brewery, but that brewery’s actual name. Why oh why wouldn’t they ‘compromise’ and let us just keep using their trademark however we wanted? I mean, we had “good intentions” and a charming, locally-relevant back-story. They must be some kind of monsters to get that lawyer to draft a sternly worded letter enforcing their perfectly reasonable legal rights. I mean…right in the feels guys! We are annoyed but also completely unrepentant, so as professionals operating in this small, close-knit industry, we’d like to take this opportunity to paint the other brewery as Big Stupid Meanie Heads. Now here’s a Star Wars quote for some reason.”
Perhaps the other brewery should brew a “3-Magnates IPA”. With the best intentions, of course.
Uh, Daze and Days are two completely different words, with different meanings. Why is it even an issue that another brewery names their beer Rainy Days since Rainy Daze doesn’t have a beer by that name. They were the ones that spelled their brewery with Daze, sorry about your luck. Also, upon looking at Rainy Daze’s beer names, almost all of them have names that already exist at other breweries. I hope they receiving Cease and Desist letters to show how ridiculous they are. I think 3M should have changed the name to Rainy’d Aze.
Interesting conflict. Well from a legal perspective there’s a commonly adopted test that looks at what are known as the ‘Polaroid Factors’, stemming from an important case on the subject, Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961).
The court would look at the totality of the alleged infringement; how similarly they’re spelled is just one factor, although creative spelling increases the strength of the prior ‘Daze’ mark. One might imagine, as so often happens, a careless bar manager writing “Rainy Days IPA” up on the board right along with “Rainy Daze IPA”, rather than using the brewery’s actual names or brand name like “Pourhouse IPA”, or indeed, just mispelling or mixing them up accidentally themselves. I know, for example, that I often see Bainbridge IPA or Bainbridge Kolsch up instead of Eagle Harbor IPA or Kommuter Kolsch. Which is why you have a trademark on use of your brewery’s trade name(s), individual brands, and any slogans or phrases you use in conjunction. Like Black Raven has “Washington Artisan Ales” or Boundary Bay has “Save The Ales”.
Another test would be that phonetically they sound exactly the same. So someone ordering at a bar might say “I’ll have the Rainy Daze/Days IPA”. If both are on, which is it?
Even if only one is on tap, can we be sure that’s the one the consumer actually meant to order? You also take into consideration the sophistication of the consumer, which for impulse purchases such as a pint at a bar, possibly by a casual, slightly-tipsy beer drinker, typically amounts to “Could the dumbest, most clueless person you can possibly imagine accidentally mix them up?” If it’s likely that they could accidentally order one beer thinking it’s another, you’ve got infringement. And confusion is rampant out there. (Just look at any brewery’s Untappd page…)
Here’s a quick overview if anyone’s interested: http://www.nolo.com/legal-encyclopedia/likelihood-confusion-how-do-you-determine-trademark-infringing.html
Trademark law is simply an increasing part of the business that we’re in. Conflicts are going to happen. Regularly. And there’s nothing personal about it. Differentiating your products in this ever-more-crowded market means protecting your IP, because it’s use it or lose it.
Thanks for the information Russell. Sounds like somebody paid attention that day in law school.
I know a lot of people (more consumers than brewers from what I see) who think this kind of stuff is ruining the “spirit of community” amongst breweries, but breweries are businesses and in order to prosper and to continue making the beers that beer fans love, they must behave like businesses.
The craft beer business is great. There’s a lot of brotherhood and sisterhood. More than any other industry I’ve been around. But the notion that breweries are not real businesses, and therefore should not behave like other businesses, is a bit naive. It can be both business and creative, profitable and delicious.