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Strange Brewing faces a trademark threat from a Massachusetts homebrew shop

Tim Myers has been pouring Strange Brew since 2010.
Tim Myers has been pouring Strange Brew since 2010.

Something strange is going on.

In September, as Denver's Strange Brewing was gearing up for a small expansion as well as the Great American Beer Festival, owners John Fletcher and Tim Myers got a letter from a lawyer demanding that they change their name.

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"Your continued operation of a microbrewery establishment under the name 'Strange Brewing Company' is causing and is likely to continue to cause consumer confusion, deception, damage to my client's good will, brand name and reputation, and constitutes a direct infringement of my client's federal trademark rights," the lawyer wrote. "We therefore demand that you immediately undertake steps to cease any further commercial use of the term 'Strange Brewing Company' in connection with your business establishment and that you adopt a term that is entirely dissimilar to this term in the continued operation of your business."

The lawyer's client: Strange Brew Beer & Wine Making Supplies, a shop located across the country in Marlboro, Massachusetts.

Myers responded with a letter offering to team up with the homebrew shop by marketing its kits in the Colorado brewery and by licensing one of its recipes to the shop -- something that would benefit both small businesses and avoid legal hassles.

But the shop's owner, Brian Powers, turned him down. And on November 2, Powers's lawyer officially rejected Myers's offer, calling it "offensive," and threatening to sue. (Find both letters from the lawyer, as well as Myers's response, below.)

"This is a homebrew shop that sells Mr. Beer kits," says Myers. "He trademarked Strange Brew for homebrew supplies and wine supplies and beer. But he has never sold a commercial batch of beer since he opened in 1997. So now I have to consult a trademark lawyer and argue that while he may have maintained his trademark on the homebrew side of it, he hasn't brewed, at least legally, any commercial batch."

Strange Brewing opened in 2010 after Fletcher and Myers were both laid off from their jobs. It pioneered a new wave of more than fifteen small breweries that have opened in town since then. Strange itself recently added brewing capacity and a back patio, and plans to expand into a space next door early next year.

Continue on to read both letters.

 

Strange Brewing Company, LLC Attn: John P. Fletcher Re: Notice of Federal Trademark Infringement

Dear Mr. Fletcher: This office has been retained on behalf of Strange Brew, LLC. Since 1997, my client has continuously operated a retail and online business for the purpose of selling beer brewing materials and sales of a "Strange Brew" branded beer product. On April 10, 2007, my client was granted U.S. Trademark Registration No. 3227867 for STRANGE BREW in connection with "beer" and "retail store services featuring beer and wine making supplies." A copy of this registration is enclosed for your reference. My client operates a retail establishment located in Marlborough, Massachusetts, but the bulk of its business consists of online sales at www.homebrew.com. My client is also the owner of over a dozen website domains containing the "strange brew" trademark. In the 16 years in which my client has been in business, through aggressive and diligent efforts and the sales and marketing of extremely high quality products and services, my client has generated a massive customer base spanning the entire United States, including well over two dozen active customers throughout Colorado and Metropolitan Denver. As a result of these efforts, my client possesses federal nationwide exclusive rights to the use of the term "Strange Brew" in connection with beer and beer making supplies. These federal rights include the right to prevent any third party from the use of this term, or any similar term, in a manner that is likely to cause confusion among members ofthe general public.

It has come to our attention that, on May 19, 2010, you began operating a microbrewery establishment in Denver, Colorado, at 1330 Zuni Street, known as "Strange Brewing Company." You have also established a web site at the address www.strangebrewingco.com, which was purchased May 12,2009. My client's reputation, good will and nationwide priority trademark were strongly established both nationwide and particularly in Denver, Colorado, well before your business commenced operation under the name "Strange Brewing Company." My client is extremely concerned that the name you have chosen for your establishment, for use in identifying a microbrewery, is so similar to "strange brew" as to create confusion and deception among members of the general public. Although a court does not require proof of such consumer confusion, my client his accumulated a wealth of evidence that such confusion is in fact occurring at this time. On numerous occasions customers communicating with my client have mentioned your establishment and evidenced a clear misapprehension that the businesses are directly related.

Further, on at least two separate occasions my client has had to deal with vendors and suppliers who have either misapplied payments or misdirected product orders under the mistaken belief that your establishment is related to my client's business. In at least one of these cases the incident had a negative impact on my client's credit rating with the supplier. Other verbal comments have been repeatedly received in which third parties have mistakenly assumed that your establishment is associated with Strange Brew, LLC. We are certain there are additional such incidents and are continuing to accumulate this evidence.

Based on all available information, it is clear that my client's Federal trademark and reputation was a matter of public record at the time you commenced operations in May, 2010. Regardless of the state of your personal knowledge, any reasonable investigation of public records, including Internet databases, would have immediately disclosed this information. This, coupled with the fact that you purchased www.strangebrewingco.comin May, 2009, which would have disclosed my client's prior ownership of over a dozen "strangebrew" domains, including www.strangebrewing.com. leaves little doubt that you were well aware of my client's prior existence at the time you adopted the name "strange brewing company."

My client is a small business like yours, and values its success and reputation. Strange Brew has gained considerable prominence in its 16 years of existence, and the customer base and overall business operation continues to expand. My client has invested significant time and resources into the development and promotion of the good will represented by the "Strange Brew" brand and is committed to taking any steps necessary to protect its valuable intellectual property rights.

This letter, therefore, is to inform you that your continued operation of a microbrewery establishment under the name "Strange Brewing Company" is causing and is likely to continue to cause consumer confusion, deception, damage to my client's good will, brand name and reputation, and constitutes a direct infringement of my client's federal trademark rights, as well as a deceptive trade practice under Colorado law.

We therefore demand that you immediately undertake steps to cease any further commercial use of the term "Strange Brewing Company" in connection with your business establishment and that you adopt a term that is entirely dissimilar to this term in the continued operation of your business. This includes, at a minimum, adoption of a different tradename; adoption of a different domain name and transfer of ownership of www.strangebrewingco.com (as well as any other "strange brew" domains that you own or operate) to my client; destruction or removal of all existing signage, menus, marketing material and other tangible items using "strange brewing company" or any other name similar to "strange brew;" cessation of all SEQ, metatag and similar web search services using "strange brewing company" or any other term similar to "strange brew;" and circulation of written notices to all customers, suppliers, vendors, landlords and other third parties advising them of the change of name and that your business is not affiliated with "Strange Brew, LLC" of Marlborough, Massachusetts.

My client fully understands that these measures take time. Provided that you respond to this letter by the close of business on Wednesday, October 10, 2012, certifying that you will comply with these demands, and keep me regularly informed as to your progress, my client is willing to afford you a reasonable period, not to exceed 60 days, in which to fully complete this transition. This accommodation will only be honored if you provide me with the requested written confirmation and comply with each of the foregoing demands, including continuous updates as to: (a) the new name you have chosen; (b) the transfer of your website domains to my client's ownership; and (c) the content of notices that are to be sent to customers, vendors, suppliers, distributors and other third parties advising them of the name change.

My client would prefer to resolve this matter amicably, but is prepared to take formal legal action if necessary. Ifthat should be required, my client will file suit in U.S. District Court in Denver seeking immediate injunctive relief, an award of attorney's fees and costs, and disgorgement of all profits realized in the operation of Strange Brewing Company since its inception. My client earnestly hopes that these measures will not be necessary.

Sincerely, David N. Schachter

This is Myers's response:

Dear Mr. Schachter,

Mr Fletcher and I have received your letter of September 26, 2012. Strange Brewing Company is a family-run microbrewery licensed by the Federal Tax and Trade Bureau and the State of Colorado to produce and wholesale craft beer in the State of Colorado. Since opening in 2010, Strange has garnered multiple gold, silver, and bronze medals from state competitions, and a gold medal at the prestigious Great American Beer Festival in 2011. Strange is internationally recognized as purveyors of fine, handcrafted ales and lagers.

We congratulate your client for the success of his homebrew shop in Massachusetts as well as his online business. We know how much work is involved to start a small business and make it a success. We too have invested considerable time and capital to build a solid client base and goodwill in the industry of craft brewing. We take quality very seriously, as demonstrated by the numerous awards garnered since opening. In the extremely competitive craft beer industry, only brewers who demonstrate and maintain high quality standards can succeed and thrive.

You mention your client owns over a dozen "strangebrew" domains, although www.strangebrew.com belongs to Molloy, LLC, which they started in 1996. We also notice several coffee shops such as www.strangebrewaustin.com or www.strangebrewcoffeehouse.com, as well as a tavern www.strangebrewtavern.net ,that also use strangebrew in their URLs. This weighed heavily in our decision to use www.strangebrewingco.com to differentiate ourselves from the other "strangebrew" options. Our URL, as well as our business name, also expresses the fact that we are a craft brewing company, further differentiating ourselves from similar URLs on the web. And because "strange brew" is so common on the web and in the public domain, we always emphasize "Strange" or "Strange Brewing Company" in all of our advertising, including the website, to further differentiate ourselves from all the other options out there.

We are concerned that a trademark infringement lawsuit could cost your client, as well as ourselves, tens of thousands of dollars that neither company can afford to spend. We would counter that there is potential for your client to profit from Strange Brewing Company's success in the craft beer industry through cross-marketing. Several homebrew companies on the web have had excellent results selling professional clone kits, including Northern Brewer, MoreBeer, and even TheBrewHut. By Strange actively marketing Strange Brewing Company recipe clone kits through your website and directing our customers to your website to purchase said kits, this could potentially raise your client's Colorado market from over two dozen active clients to well over two hundred.

In the homebrew and craft brew spirit of "Collaboration Not Litigation" we would request a meeting with your client to discuss these options before entering into a protracted legal dispute. We can be contacted via email or direct by phone at the brewery.

Sincerely,

Tim Myers Head Brewer Strange Brewing Company Denver, CO 80204

This is the most recent "nasty-gram" from the lawyer:

Dear Mr. Myers and Mr. Fletcher:

I have now had an opportunity to fully discuss this matter with my client in light of Mr. Myers' email to me of October 10, 2012 regarding your company's ongoing infringement of my client's Federal trademark rights in the name STRANGE BREW. My client is disappointed that, although you express a concern about the costs that would be incurred in legal proceedings, you seem to have chosen a course of action that leaves no other alternative.

This matter has nothing to do with the quality of your products, the humble origins of your business or the awards you have received. It is also irrelevant that there are other parties using the word "strange" in other unrelated businesses, or that others may have ownership rights in domain names that use this term. For the most part these entities do not sell beer or beer-related products and therefore their actions do not cause confusion'.

Your company, on the other hand, is a directly competitive enterprise, operating in a erritory in which my client has an established customer base, and you are using a name that is virtually identical to a name around which my client has spent 16 years building a reputation and securing Federal trademark protection. My client has no intention of allowing this valuable investment to be hijacked by another company, particularly where it appears that, at the time you adopted the name Strange Brewing Company, you were well aware, and on public notice, of my client's existence, business activities and Federal trademark protection.

Your suggestion that my client enter into a cross-marketing relationship, market your products on its website or otherwise become affiliated with your company is rejected, not to mention offensive, Your actions constitute Federal trademark infringement and are continuing to cause confusion, deception and damage. You have no priority rights in the term "strange brewing company" or any other similar term. Further, we are somewhat surprised that, in the face of my client's initial letter, instead of attempting to resolve this matter amicably you chose to even further promote the infringing name of your business in a front section feature article in the October 12, 2012 Denver Post.

In short, instead of curtailing activities, you appear to have ramped up your infringing use of my client's trademark and continued with aggressive marketing, including participation in beer festivals using my client's trademark. These tactics will not resolve this matter, and such actions will only serve as additional evidence that you are deliberately ignoring my client's rights and intentionally infringing its trademark.

My client remains willing to grant a reasonable period of time for you to cease use of your company's name and adopt a dissimilar term, and again, to reiterate, this has nothing to do with the quality of your products or the unrelated brand names under which they are identified. This grace period can only be honored if you agree to immediately undertake transitional steps.

Should you refuse to do so, it will leave us with no other choice but to take formal legal action without further notice. We are well aware of the costs associated with litigation, but I would remind you that, under the circumstances, it is entirely possible a court will agree that your actions amount to intentional infringement and could award my client not only monetary damages but also the recovery of its attorneys' fees and costs.

I would earnestly request that you reconsider your position on this matter and advise me by the close of business on Friday, November 9, 2012, that you will agree to transition to a new name as soon as possible.

Sincerely, David N. Schachter


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