Member Article

The recent storm in the UK about Scottish craft brewing company BrewDog’s decision to invoke its trade mark rights against much smaller rivals highlights the difficulties and negative repercussions that can arise when it comes to enforcing trade mark rights. BrewDog has been extraordinarily successful. The company was launched in 2007 by two young men who met at school and decided to go into business because ‘‘basically we couldn’t find anything we really wanted to drink”. The company now has a considerable business comprising multiple brands (including the flagship Punk IPA), some 45 bars (15 of them outside the UK in places like Tokyo, Helsinki and Sao Paolo), a staff of nearly 600, exports to 50 countries, and sales of GBP45-million. What makes BrewDog very different from the average corporate success story is that it has quite deliberately traded on an anti-establishment, anti-big business platform, and positioned itself as a challenger brand. The company has described itself as a “post-punk, apocalyptic, mother … of a craft brewery”. It has asked its customers to join it on a ‘‘ride toward anarchy”. Its website proclaims: ‘‘Experimentation is our Art. Revolution our weapon. Walk tall, kick ass and learn to speak craft beer.”

BrewDog hasn’t exactly held back about the competition either. It once said this of the major brewers: ‘‘Technology allowed the big beer companies to bastardise and commoditise their products like never before … they used advertising and big budgets to somehow convince people this bland, insipid parody of a product was what beer was supposed to be” and this about a large drinks company: ‘‘A band of dishonest hammerheads and dumbass corporate freaks.” Needless to say, BrewDog has made some enemies. So, when BrewDog started pursuing much smaller companies on trade mark issues it became a major story, with people seeing their actions as hypocritical. The allegation that it was acting like ‘‘just another multinational corporate machine” stung, and the company made it known that one of the two founding partners would personally take care of the situation. It went on to blame its lawyers for the whole debacle, claiming they had been overzealous and stating that: ‘‘Although they wear suits and are mostly sensible folks, lawyers can sometimes go a bit crazy and forget the kind of business we are and how we behave. They are sorry for their actions and we have put them on washing up duty for a week.”

Trade mark law grants the owner of a registered trade mark a limited monopoly, in the sense that it has the right to stop anyone using a similar trade mark on similar goods where that use causes consumer confusion. In the case of a trade mark that’s well known, the owner has the further right to stop anyone using a similar trade mark on goods that might be quite different and where there is no consumer confusion, but where there is other harm such as dilution or tarnishment of the trade mark. But, as branding expert Graham Hales said in connection with the BrewDog controversy: ‘‘Lawyers have their jobs to do and any brand needs to protect its trademarks. That being said the sense of David v Goliath in a business context is something people will comment on.” David v Goliath trade mark bullying comes up all too often. The charge was made in recent trade mark proceedings in the UK involving car company Bentley and a clothing brand also called Bentley. We also saw it a while back when a FIFA-linked company used its registration for Ballon D’Or (French for Golden Ball, and the name of the award that goes to the world’s best footballer) to make life difficult for a mom-and-pop business in the UK called Golden Balls – the couple claimed that it was so named because it was the wife’s nickname for hubby Gus Bodur (GB). In South Africa, the David v Goliath charge was evident in a case that also involved beer, the Black Label spoof T-shirt case, which attracted huge publicity both in South Africa and abroad. 

Trade mark owners need to remember that very little escapes the media these days. And social media does, of course, play a huge role. When the cycle company Specialized threatened a small Canadian cycle shop with trade mark infringement proceedings, it created a social media storm among the cycling fraternity, and forced Specialized’s MD to issue a grovelling apology: ‘‘I screwed up ... there is no excuse.” At the same time, however, he asked his customers to understand that the company faces a serious counterfeiting problem, making trade mark rights vitally important. Trade mark rights are, of course, enormously important, and they should be enforced. But a thoughtful and nuanced approach is often required. In the case of a company that has a very particular image (like BrewDog), that approach should include a consideration of the brand’s DNA. Reviewed by Gaelyn Scott, director and head of ENSafrica's IP department.