The lawsuit filed by Denver's Epic Brewing against fellow Colorado beer maker Eddyline Brewing took an unusual twist earlier this month when Eddyline posted a message on Facebook, on the advice of its lawyer, defending itself and clarifying how the beer at the center of the dispute, Epic Day, would be distributed.
On November 3, Epic Brewing filed suit in US. District Court against Buena Vista's Eddyline in regard to an Eddyline beer called Epic Day Double IPA. Epic Brewing claimed that Eddyline was infringing on its established trademark rights to the word "Epic" when it comes to beer. In the suit, Epic asks for a whopping $1 million in damages as well as any profits Eddyline made selling Epic Day. It also asks Eddyline to get rid of all of its Epic Day cans.
The federal U.S. Patent and Trademark Office recently rejected Eddyline's attempt to trademark the name "Epic Day," saying that it could cause confusion with Epic Brewing, which already owns the "Epic" trademark.
Eddyline responded the next month, denying all of Epic's claims.
Then, in February, Epic Brewing asked the court to add Eddyline's distributor, Western Distributing, to the suit, saying that that company was culpable as well. Eddyline has since countered that request, accusing Epic of "intentionally and unlawfully interfering" with its contractual relationship with Western.
Still, on March 3, Eddyline posted a message on its Facebook page, saying it would begin self-distributing Epic Day until the case is resolved. "In late 2017 Utah-based Epic Brewing sued Eddyline Brewing claiming that our Epic Day Double IPA infringed on their trademark. We feel strongly that this claim has no merit and we are committed to defending our company from what we consider to be a frivolous lawsuit," the message read. "Until this case is resolved, we will be self-distributing Epic Day DIPA to select accounts in Colorado."
A representative of Eddyline contacted Westword the next day with an offer to discuss the case. But after more than two weeks, Eddyline declined to talk further, saying it was on the advice of its lawyers.
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In the meantime, Epic's Colorado sales manager, John Turk, posted a lengthy message on the public Colorado Let's Talk Craft Beer Facebook group defending his employer and explaining the brewery's position. (See his treatise below.)
The two sides are now in the discovery phase of the proceedings to gather evidence that will be presented to a judge.
Here are Turk's comments:
I have been with the company for almost five years and can guarantee you our ownership is comprised of some very passionate and downright great people who are in the game to create very good beers, elevate “craft” beer and help communities where we distribute beer.
To give the background, Eddyline applied for a trademark of “Epic Day” in late 2016. The USPTO declined the trademark due to similarities with Epic Brewing. Before any lawsuits or cease and desists were ever filed, Eddyline was contacted and asked to change the name of the beer. The Cease and Desist and lawsuits were filed after no communication was received from Eddyline in 2017. The Cease and Desist then went to Western Distributing and they stopped selling the brand. My assumption is that they see merits to the claim. C&D’s and lawsuits are filed usually to get some movement form the other side, which there has been none of. What do you think a judge would say when he hears that a trademark was filed and rejected over similarities?
I have learned a lot about trademark laws in the last few months. First and foremost, it’s is our fiduciary responsibility to protect and defend our intellectual property rights and trademark. We have spent millions of dollars building our brand. If we do not defend our trademarks, we lose the right to. If we do not protect them, anyone can use it and for example come out with an “Epic Colorado IPA," and we would have no legal standing.
Yeah, Epic is an adjective that is used in common everyday conversation. So is Stone and Denver and Elevation. These are comparable examples. In 2014 Elevation hit Renegade with a C&D on Elevation IPA. Renegade renamed the beer E3. Platte Park Brewing was first named Denver Pearl Brewing and also received a C&D or at least told they would get one, so they changed the name. Stone is going after Keystone. Stone brewing company also C&Ded Kettle & Stone Brewing Company and they are now Vindication Brewing.
Whoever is placing the C&D or lawsuit always looks like the jerk. I get it, but after many conversations with trademark attorneys and reading about cases, I now understand that it was the responsibility of business owners. You don’t protect – you lose the right to. Do you think that another local brewery could go name a beer “Left Handed IPA”? We have been hit with Cease and Desists and have changed the name. The Bruery, who we once did a collab with, hit us with one over our beer Midnight Mischief.
I can tell you firsthand that there is “market confusion” with the brands. I do handsells at many liquor stores around the front range and have examples. At Argonaut Eddyline beers are right below Epic ones. When I am giving away swag at a handsell, numerous times customers grab the Epic Day and ask me for the glassware. I even had a couple people say “The Eddyline is all Epic right?” Westrail Tap House in Lakewood has been a long supporter of Epic and have had Escape to Colorado IPA on for almost 4 years. They also placed Epic Day from Eddyline and list their draft beers in alphabetical order on the menu. So naturally Eddyline Epic Day and Epic Escape to CO are right next to each other. Anytime someone orders the Epic IPA, the servers have to clarify which one they are really wanting. At GABF several attendees came to our booth asking for the Epic Day IPA. At Morgans last Friday three people asked me of the Eddyline stuff was ours too. Not all the beer drinking population is as privy to the differences between the two brands. Especially ones on this forum.
I will also say that somehow the battle over this has become a conversation of Big vs Small or Local vs Non Local. Epic and Eddyline distribution in Colorado is very similar. I am willing to share ours if Western would share Eddyline’s. Epic started in SLC in 2010. We opened up a brewery here in 2013 due to some lingering archaic beer laws in Utah and this just being an overall badass state to produce beer in. Our owner lives here, is very active with the Colorado Brewers Guild and we donate a ton of beer to charity events around the state. Eddyline is originally a NM business that branched off Socorro Springs Brewing. They also have a brewery in New Zealand. They also donate a lot of beer to community causes. Our founder lives in Colorado. We employ over 50 Coloradoans. I just think the framework of the argument has leaned this way and should not be. It is not Big vs Small or Local vs Non Local.
Nobody wins when things like this happen. It first of all sucks for the consumer. It also sucks for retailers, distributors, reps, sales managers, owners etc. I have friends at Eddyline and Western. I wrote this not to change anyone’s minds or to get any sympathy but rather to explain our side of things as we have been trying to be relatively quiet and professional about the matter. But our side needs to be told.