A battle is brewing over a local beer brand.
Burton Brewing LLC, which operates Henrico County-based Strangeways Brewing, filed a lawsuit in July against beer and wine equipment retailer Strange Brew in a preemptive attempt to protect its name.
The suit, filed in Richmond federal court, comes after Strange Brew opposed Strangeways owner Neil Burton’s attempt to register a trademark for “Strangeways Brewing” as he worked to launch the business this year.
Burton Brewing fired back in the suit filed July 30, asking that “Strangeways Brewing” be registered without further objection from Massachusetts-based Strange Brew. The suit requests that the “Strange Brew” trademark be canceled, alleging the company never used the name in connection to beer.
“Defendants have never had the required licenses to make and/or sell finished beer to the public, other than two one-day licenses to sell alcohol resulting in sporadic, casual or transitory alcohol sales,” the Burton Brewing lawsuit says.
The dispute brings a bitter taste to a normally congenial but burgeoning industry. Brewers in the craft beer scene typically welcome competition in the market and have characterized the movement as a sort of brotherhood.
The suit shows that as home brewers give way to entrepreneurs pouring in big money, the business end can get in the way of camaraderie and goodwill.
Strangeways is being represented by Maya Eckstein and Paul Nyffeler of Hunton & Williams. Burton and his legal team declined to comment.
Strange Brew owner Brian Powers did not return a phone call by press time.
Powers, who was issued a trademark for “Strange Brew” in 2007, is fighting a similar battle with Colorado’s Strange Brewing Company. The Denver-based brewery has also filed a petition with the U.S. Patent and Trademark Office to have Strange Brew’s trademark canceled.
Burton applied for a trademark on “Strangeways Brewing” in 2012. The application was published in January 2013, beginning a 30-day opposition window.
Strange Brew submitted an opposition in May, after requesting and receiving an extension on the month-long filing period. Strange Brew’s complaint calls the Strangeways name “confusingly similar” saying it “likely would confuse, deceive, or cause mistake amongst consumers,” thereby “diluting” Strange Brew’s mark.
“Strange Brew” is trademarked in two classes recognized by the USPTO – once as a beer product and again as a retail store featuring beer and wine making supplies. Burton has only applied for a trademark in the beer category, and the suit does not contest Strange Brew’s trademark in the latter class.
Strangeways is waiting for final approval of its trademark.
Virginia is now home to more than 60 microbreweries. Strangeways is one of at least four to open in the Richmond area in the past few years, with more slated to begin serving beer in the near future.
ThompsonMcMullan attorney Zac Cohen, who last year formed a beverage practice group aimed at helping breweries with business hurdles, said more intellectual property cases in the beer scene may not be far off.
“That’s a good indicator of what’s to come,” he said. “As you get more people entering the marketplace that maybe have some business background and aren’t doing this more as a hobby … they’re going to be more willing to put their money where their mouth is, so to speak.”
Burton’s legal team filed a request to the USPTO for the cancelation of the Strange Brew trademark canceled on Aug. 2, three days after filing their civil suit in the U.S. District Court for the Eastern District of Virginia. They also filed a motion Aug. 2 to suspend the USPTO request with the pending civil suit proceedings.
Williams Mullen partner and intellectual property lawyer Patrick Hanes said this type of case, like virtually all civil disputes, is typically settled out of court. Neither party, he said, would likely want to risk going to court and losing use of its brand.
“You’re either going to move away from that mark, or you’re going to stay in it with some accommodation for the other mark,” Hanes said. “Trademark owners have a lot to lose from losing a case.”
The suit argues that although the name Burton and Strange Brew share may be “strange,” it is far from unusual. The 25-page lawsuit references more than 20 other uses of the word “strange” by brewers, beer-related festivals and other entities.
Burton has also filed a trademark application for his “Think Strange, Drink Strange” slogan. No oppositions have been filed against that application.