The popularity of craft breweries and distilleries has grown at exponential rates in the past few years. There are now over 1,800 craft distilleries in the United States, up from roughly 100 in 2005 and 7,400 craft distilleries up from approximately 1,400 in 2005. These increases are reflected in Pennsylvania where the number of distilleries has gone from single digits in 2011 to over 80 in 2019. Similar growth is occurring internationally and in related sectors such as craft hard cider and seltzer.

With this growth there has also been a rise in trademark filings with the U.S. Patent and Trademark Office (USPTO) in all alcohol-related sectors. Likewise, many beer, wine, cider or spirit companies that have traditionally occupied only one of the alcoholic beverage sectors are now expanding into the others. This boom in craft alcohol production popularity coupled with the emerging cross-production of beer, wine and spirits has blurred the branding lines, creating more confusion between brands and increased the difficulty in obtaining IP protection. This article focuses on the new crowded and intertwined alcohol space, and its effect on branding and trademarks.

Federal Trademark registration with the USPTO is unarguably one of the most important branding aspects for any business, big or small because of the many advantages it affords, including:

  • Right to use the registered trademark symbol;
  • Legal advantages
  • Constructive notice of registrant's ownership;
  • Nationwide priority from application filing date;
  • Legal presumption of ownership.
  • Generally necessary for online, domain name, social media and app store enforcement.

    • As background, in order to obtain a trademark registration, one must file an application in the USPTO where the mark will be examined to determine the applied-for trademark's "registrability." The USPTO considers many factors when determining whether an applied for trademark is worthy of federal protection. One of the most important concerns is whether the mark, if registered, would create a likelihood of confusion with a prior registered mark. The USPTO will evaluate a number of factors to determine whether marks are confusingly similar, but the two most important factors are whether the marks the look and sound similar, and whether the goods and services provided under the marks are related. In order to establish a likelihood of confusion, goods and services need not be identical, only related.