Excerpt from court document comparing logos

(Boston, MA) – The first update on the Bear Republic – Central City Brewing lawsuit in four months . . .

Back in February, news broke that Bear Republic would be taking Central City Brewing to court over alleged trademark infringement on its Racer 5 and Red Rocket brands.

The lawsuit is still in its early stages though we’ve got our first taste of what is to come. Bear Republic filed for a preliminary injunction in May. What does that mean? The brewery wanted Central City to cease all activities pertaining to the “infringing” Red Racer brand while the lawsuit was in process. The court ruled against Bear Republic’s request for injunction.

The request, in its own right, shows that Bear Republic means business. Per Wikipedia, to be granted the injunction, Bear Republic is arguing all four of the following:

1) Substantial likelihood of success on the merits of the case,
2) BR faces substantial threat of irreparable damage or injury if the injunction is not granted,
3) It is more harmful to BR if not granted injunction than it is to Central City if granted injunction
4) Grant of injunction serves the public interest

According to the legal document filed by the court, Bear Republic’s argument for confusion between the two brands was not particularly compelling, knocking out criteria #1.

In addition, Bear Republic failed to assert that instances of confusion cited so far caused any harm such as loss of sales. The court has found that the three moments of confusion cited by BR aren’t enough to extrapolate confusion to the general population either and that BR failed to show any financial harm as a result of these instances. Also of note, Bear Republic sales were up 16% last year despite Central City Red Racer being available for all of 2009. The end result is that BR hasn’t made a compelling case for criteria #2 or #3 either.

As for criteria #4, the court says “The public interest is best served by fair competition in the marketplace. Since Bear Republic has not shown a likelihood of succeeding on the merits in establishing its infringement claims, to enjoin Central City from selling RED RACER in the United States would not serve the public interest.”

Looks like a clean sweep for Central City. Now the question is whether Bear Republic will swallow its pride and give up or push forward in its battle against the small Canadian brewery.

[Ed. note: Hat tip to Beer in BC for the link.]

Excerpt from court document comparing logos

(Surrey, BRITISH COLUMBIA) – Central City Brewing Brewmaster, Gary Lohin, chimed in on the Bear Republic lawsuit over at Beer Advocate within the last hour:

“Hi everyone, I’d like to clear up a couple of things from the Central City point of view. My name is Gary Lohin, and I am the Brewmaster at Central City Brewing Co, which is in a community just outside Vancouver, British Columbia. First of all, our logo is not a mish-mash of Racer 5 and Red Rocket. The logo was used with permission from a local elderly painter, who painted this oil painting in the 50′s. That’s why the girl kind of looks like a Vargas/pin-up girl. I don’t believe the painting had a name, but we dubbed it Red Racer after the bike. As for the font, we had it professionally designed by a local graphics artist. Any suggested similarities in the font and colours are purely coincidental. As well as a brewer for 20 years now, I am a huge mountain bike enthusiast. Putting a bike on the label was kind of my homage to the local mountain biking community.

I must say I am disappointed in the actions taken by Bear Republic because I really like to think that all us craft brewers, and the people who drink our beers, are one like- minded people. We all love good beer!. I myself enjoy Bear Republic’s beers, and the most ironic thing is that we were selling their beers in our brewpub store! We never had a problem confusing their label with ours.

I know everything I have said probably means nothing in a court-of- law, but we never even knew who Bear Republic were when we designed our label way back when. We here at CCBC are totally committed to making excellent, distinctive beers, and wanted to send some to the United States. We think our IPA stands up to any IPA brewed anywhere. We wanted you guys down south of the 49th parallel to try some. That still will happen, but possibly under a different name, not logo. We want to spend our money on new tanks, and kegs, and our employees, not give it to lawyers.

I see this as a lose – lose lawsuit , and I certainly wouldn’t like to see a boycott against Bear Republic. It would have been nice to get a phone call though.

Gary Lohin
Brewmaster
Central City Brewing”

(Cloverdale, CA) – More trademark battles . . . in this middleweight bout, Bear Republic Brewing takes on Central City Brewing over “Red Racer.”

The Boston IP blog posted the details about the Bear Republic lawsuit over the weekend. California-based Bear Republic is suing British Columbia-based Central City over alleged trademark infringement on its “RACER 5 INDIA PALE ALE and BEAR REPUBLIC RICARDO’S RED ROCKET ALE” marks. Bear Republic takes issue with Central City’s Red Racer product line which hit cans and U.S. distribution for the first time last year. The brewery sent a cease and desist in mid-December to which Central City responded in early January, rejecting Bear Republic’s claims.

In the lawsuit, which is available in full here (pdf), Bear Republic says that at this year’s GABF, a representative was approached by two different people asking about its Red Racer beer in cans. Bear Republic also points to an article penned by Massachusetts-based beer columnist, Norman Miller, in which he repeatedly confuses the Red Racer and Red Rocket names. The article, for which Google’s cached result is still available, has since been removed. The lawsuit was filed in late January with a Massachusetts court, a state where Central City and Bear Republic products are both available.

The lawsuit also notes that it was an (unnamed) Ohio brewery owner that phoned Bear Republic, mentioning the similarities between the two breweries’ marks as well as “the similarities of words, fonts and colors” used between them, that first made the brewery aware of Central City Red Racer products.

The suit seeks, among other things, “an award of damages in the amount of Defendant’s profits.” This is where I need a legal team to look at this. Does that mean just the profits from the allegedly infringing products or all of the company’s profits?

Bear Republic has always and will continue to make award-winning beer. What this does though is shine a spotlight on Central City Brewing, a brewery I had admittedly never heard of before this incident. Central City Red Racer IPA has earned awards and critical praise from the beer rating community, and actually has a chance to make it into the top 10 American IPAs on Beer Advocate.

Central City beers are imported through Klassen Wines; they appear to be available in Maine and California (and others?) in addition to Massachusetts according to Beer Advocate’s Beer Spy feature. Infringing items are to be seized if Bear Republic wins the lawsuit so if you want to try these beers, you may want to snatch them up quickly.

[Hat tip to Sycodrummer on BA for bringing this to our attention.]