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Some Final Thoughts on Cease and Desist Letters

Last week, we reported that DC Brau sent a cease and desist letter to (then-named) Citizens Brewing Company of Silver Spring, following something that was perhaps less than a negotiation, but at the least was a conversation. In the aftermath of this news, it seemed that, at least in some corners of the Internet, DC Brau was pilloried for their decision to send Citizens such a letter. Despite the uproar, sending that letter was the right thing for Brau to do.

In the initial report, we wrote that

“The potential problem stems from the possibility of asking for ‘a Citizen’ and there being confusion between an offering from either DC Brau or Citizens.”

Imagine walking into a bar in Silver Spring and ordering “a Citizen.” “Which one?” replies the bartender. To further complicate the matter, continue the hypothetical and say you don’t like the beer you’re handed. This being 2013, you tell your friends on social media that you didn’t like said beer. Now you, dear reader, know the difference between these two brands, one the name of a brewery, the other the name of a beer made eight-and-a-half miles away. The well-trained bartender also knows the difference. But as we play the game of Telephone, things get muddled. At some point, someone will say “Oh yeah, my friend had a beer called Citizen in DC and didn’t like it.” In that case, both brands, both the beer’s and the brewery’s, suffer. In a similar scenario in the craft beer alternate universe, you have a beer from Citizens and like it, and then a confused friend, one who happens to not like Belgian-style ales, orders a Brau based on that, and dislikes it. Brand confusion is the name of the game here.

Cease and desist letters are, for better and for worse, part of the craft beer landscape. There are now over 2,500 breweries in the United States. They’re competing for space in your fridge, on shelves in stores, and in bars and restaurants. Breweries try to create memorable brands as part of this competition, and then they protect those brands from competitors, be they real or perceived. Some of these C&D’s strike me as clearly justified, as in the case above. Others seem odd. To wit, Rogue Ales in Oregon went beyond a cease and desist letter, filing a trademark infringement lawsuit against RJ Cooper’s Rogue 24 restaurant here in Washington, DC. Why did Rogue Ales do this? Because if RJ Cooper ever moved to the Pacific Northwest and took this restaurant concept with him, he could point out that having had this restaurant in DC for some time, Rogue Ales took no action. That’s the thing about trademarks. They have to be defended. Use them, or lose them.

Having a brewery with a beer called The Citizen and a brewery called Citizens within ten miles of each other is an untenable situation. Even absent that distance, Brau is one of the fastest-growing craft breweries in the country. Undoubtedly they will expand into new markets in the near future. DC Brau is not evil here. They’re doing what they have to do to defend their beer and their brand. You, a savvy reader, may not be confused by a beer and a brewery. Those who clearly see the distinction may think that Brau look like a bully, but not everyone sees the difference so clearly. Look at the Internet comments. Look at this example of brand confusion, involving Flying Dog. Someone will be confused. Confusion is what trademarks are designed to eliminate.

Some of the nicest, most generous people I’ve met in any business are in the beer business, but it’s a business all the same. Craft beer is not a hobby. That would be homebrewing. Craft beer does not come from magic elves. It comes from businessmen and -women, with employees and bills to pay. The notion that craft breweries are somehow separate from other businesses because of the products they make is false and harmful. One local article on this situation referred to Brau as “an industry heavy.” This is a brewery that is four years old and employs less than twenty people. This is a brewery whose co-founder, Brandon Skall, talked to Citizens first and sent a cease and desist letter only after said talks. Sure, everything is relative, but this isn’t David versus Goliath here. This is simultaneously David versus David and business as usual in a competitive marketplace.

Citizens Brewing Company is now Denizens Brewing CompanyThey have an excellent location in a part of the area that is underserved in terms of craft beer, and a head brewer who comes from Iron Hill, one of the better and more underrated mid-Atlantic breweries. There will be a line out the door when they open, and we aim to be at the front of that line.

That there was any outrage over this situation is a sign of DC’s relative youth in terms of craft beer. After all, Brau is DC’s oldest production brewery. Every brewery in DC, and within thirty miles of the city, is new. Breweries are going to have conversations and send cease and desist letters at both the national and local levels. Some will even take legal action. It is painfully naive to cry foul because the brands you only think about during happy hour want to protect themselves, their creations, and their products using the very system established expressly for their doing so.

DC Brau was right to do what they did. So when, not if, these conflicts happen please take a deep breath. Don’t overreact. Don’t storm off or forswear a brewery. Whether it’s convenient for us to think about our leisure activities as such or not, all of this is part of doing business.

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