How a Small Vermont Brewery Gave Rise to a Potential Study of Trademark Policing Tactics
Rock Art Brewery LLC is a Vermont-based brewer of craft beers that produces about 3,000 barrels of beer annually. Hansen Beverage Co. is the maker of the MONSTER brand energy drink and has over $600 million in annual sales. During fall 2009, Rock Art produced a barleywine beer called VERMONSTER and filed an application to register that trademark. Hansen sent a cease and desist letter to Rock Art claiming that VERMONSTER infringed its MONSTER mark.
Rock Art responded to Hansen on two fronts. First, by directly corresponding with Hansen's counsel on the trademark claim and standing firm in its position that market differences between energy drinks and craft beers negated potential confusion. Second, at an abstract level, Rock Art viewed the dispute as essentially David v Goliath. Firmly believing this, Rock Art used social media to its advantage. From the beginning, Rock Art notified its Twitter followers and Facebook fans of the issues, nature of the dispute and its view of same. The rockartbrewery.com website became a repository of information regarding the squabble and links to press pieces discussing same. The Hansen/Rock Art matter garnered attention in newspapers across the country and stories on ABC News, MSNBC and CNN. A Facebook fan page called "Vermonters and Craft Beer Drinkers Against Monster" sprouted and quickly rose to over 18,000 members.
Ultimately, Hansen backed down. The VERMONSTER trademark has since matured to registration and Vermonster Beer remains available. Whatever the ultimate impact of Rock Art's use of social media in this dispute was is unknown but clearly shows that utilization of such outlets can be persuasive, as evidenced by the nationwide following and press coverage the dispute received. Indeed, one particularly influential follower of the dispute was Senator Patrick Leahy of Vermont.
Senator Leahy sponsored legislation making certain amendments to the Lanham Act regarding Madrid Protocol filings. In addition to these technical amendments, Senator Leahy added a measure directing the Commerce Department to study trademark litigation tactics to determine whether large corporations are potentially misusing trademark laws by attempting "to enforce trademark rights beyond a reasonable interpretation of the scope" of those rights to essentially harass small businesses like Rock Art, which in turn may "stifle" innovation and entrepreneurship. President Obama signed the law and it went into effect March 17, 2010.
No timeline has been set for any such study to commence or complete. The results should prove interesting from both the perspective of the brand owner and its duty to police its marks and from the perspective of a small business and the incentive to innovate. Irrespective of the results of any study conducted as required by the Leahy-sponsored Amendment to the Lanham Act, the Amendment itself and the history leading up to it underscore the growing importance of social media. Twitter and Facebook are changing how people interact, how products are marketed and, now, how some disputes are resolved.
Vol. 53, June 2010