With more than 3,000 breweries in the United States and nearly 2,000 more in some phase of planning, the likelihood of trademark infringement increases with each passing IPA related pun. Some disputes are settled in a very gentlemanly manner and others require the proverbial “lawyering up.”

Regardless of how these disputes are being settled, there is no denying the frequency of mark related disputes are increasing with the rapid growth of the craft beer segment. Here are some very practical trademark trends and lessons that all breweries should heed whether in the startup phase or launching a new seasonal brew:

• First and foremost, securing strategic trademarks while building a brand is a sound strategy and provides long term value. Committing financial resources towards clearing and registering marks early in the life cycle of the business is absolutely necessary.
• In order to mitigate the likelihood of infringement, search, search and run another search. Search for names on craft beer community websites, such as BeerAdvocate and RateBeer. Then, search for names through Google. If you do not find anything similar in these searches, search the Alcohol and Tobacco Tax and Trade Bureau (TTB) and Certificates of Label Approval system database. Next, if you do not find anything after searching the TTB database, you still need to conduct a search on the United States Patent and Trademark Office (USPTO) website. If you come up clean after all of these searches, you might be on the right track.
• In conducting searches, if you find a similar mark, you may not have to rebrand; but then again, you may have to rebrand. In certain circumstances, you may be able to work out a consent agreement with the owner of the similar mark; but, this strategy is not without risks. Before you pick up of the phone and call the owner of the similar mark, discuss the risks associated in doing so with a lawyer.
• Along those lines, infringement lawsuits are very expensive. A startup or early stage brewery can quickly be run out of business if it gets involved in an infringement suit. This is why it is critically import to thoroughly research potential marks and discuss your options with a professional that has experience in handling trademarks.
• Be clever and avoid descriptive marks. You will face an uphill battle trying to register a descriptive mark. The strongest and most defensible marks are those that are seemingly arbitrary or have little connection to the product.
• Bear in mind that all alcoholic beverages are the same, at least for now. The USPTO has taken the position that all alcoholic beverages are related, a significant factor in determining whether one trademark conflicts with another.
• If you have a registered mark and get a call from someone that wants to register a similar mark, it is fine to be reasonable and accommodating; but, be very careful about the degree of reasonableness and accommodation. Not adequately protecting your marks might limit your ability to do so later. In certain circumstances, sending a cease and desist letter may be the most prudent course of action.
• On the other hand, know when to file suit and defend. The craft beer industry has been built on cooperation and collaboration. Consumers are more loyal to the craft beer segment and less loyal to particular brands, so any perceived overreaching might not be the best idea from a public perception perspective.

With as much value that is created over time in a regional or even national brand, it is no wonder that breweries are getting more protective of their marks, but there are a number of competing issues that must be weighed in doing so. The best course of action is to create a comprehensive intellectual property strategy that sets forth how the company will clear, register, and protect its marks. Any brewery that does not have a comprehensive intellectual property strategy is unnecessarily putting its goodwill at considerable risk.