In the bustling craft brew transparenteconomy brewers are faced with new issues every day. One that recently came to my attention arises when the craft brewery’s brewmaster or head brewer decides to either start his own craft brewery, or go to work for another brewery. While this may not initially seem like a big deal, it gets much more complicated when that brewmaster or brewer is responsible for the creation of your flagship brew. The question arises: who owns the intellectual property rights to that brew? Of course, the brewery is going to say that they have been selling, distributing, and promoting the brew, so it must be theirs. On the other hand, the brewer is going to say that he created it, so it must be his. The truth is that determining who owns the intellectual property rights to the brew formula can get quite complicated, encompassing numerous factors. But it does not have to be.

With a booming industry such as craft brew, it is imperative that the appropriate precautions be taken to protect the craft brewery’s most lucrative asset: the beer itself. In order to protect a brew formula from being taken from your company and utilized by a competitor when one of your brewers, the creator of the formula or not, leaves the company, the formula must be treated as a trade secret. The California Uniform Trade Secrets Act (“UTSA”) defines a trade secret as:

information, including a formula, pattern, compilation, program, device, method, or technique, or process, that:
(1) derives independent economic value, actual or potential, from not being generally known to the public, or to other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Continue Reading Hey, that’s my beer! I think…

With so many new microbreweries popping up in Sacramento, the Bay Area,transparent and the Greater San Diego area, I felt compelled to write the present piece for the benefit of the aspiring, as well as the established, microbrew entrepreneur. These individuals undoubtedly pour (excuse the pun) their hearts, souls, and hard-earned money into the development of their breweries and their attempts to formulate the perfect brew. However, from my own research and analysis it seems clear that these entrepreneurs are regularly overlooking one thing in particular—their intellectual property rights.

The thought first occurred to me when I was sitting in San Diego having an IPA with a couple of my friends. As I stared at the bottle on the table it occurred to me that despite my everyday involvement with intellectual property, I had never looked into whether some of these companies were properly safeguarding their intellectual property rights. I immediately went to the United States Patent and Trademark Office (“USPTO”) website on my cellphone and began searching for some of my favorite breweries and their assorted brews on the database. I quickly learned that some of the companies were prudently protecting their intellectual property in their company’s name, certain brews, and certain designs/graphics. However, I also learned that some of my favorite breweries were not doing anything to protect their intellectual property. I discussed the matter with my friends and express how I could not understand why these companies would not try to protect their intellectual property. Then, it occurred to me that some of them probably never thought about it, or were simply unaware what types of protection exist under the intellectual property laws. After all, prior to my involvement in the intellectual property world, I never thought about trademarks, trade dress, copyrights, or patents. Accordingly, I decide to draft this brief, non-exhaustive discussion of trademark law’s application to the microbrewery industry and suggest that breweries consider protecting their rights as they grow as businesses.

Continue Reading Brewing Up Some IP