(Kalamazoo, MI) – Here’s the response from Bell’s Brewery.
To all interested:
Yesterday, Northern Brewer posted on their Facebook page about a cease and desist letter that they received from Bell’s Brewery, Inc. I apologize that Bell’s has taken so long to respond to this issue, but all members of management were travelling to the Craft Brewers Conference yesterday and could not get a response posted.
On March 18, 2011, representatives of Bell’s Brewery, Inc. sent a letter to Northern Brewer regarding that company’s use of Three Hearted Ale for a homebrewing kit. This letter was sent out at a time when Bell’s is having to defend it’s trademarks(including Two Hearted) on several fronts. Because we are finding ourselves in this situation, we believe that is necessary to correspond in writing to those we feel are infringing on our marks. We do not know the owners of Northern Brewer nor were we familiar with the products they offered until recently. From a legal perspective a phone call was not going to provide the documented defense that we need as we try to defend this trademark now and in the future.
Here is a partial extract of the letter we sent:
“As a result of the extensive business investment by Bell’s Brewery, significant goodwill has inured in the TWO HEARTED trademark.”
“While Bell’s Brewery encourage the development of independent brewers and homebrewing, Bell’s Brewery are concerned with your use of THREE HEARTED ALE Extract kit.”
“Bell’s Brewery are of the opinion that there is a likelihood of confusion between your mark and the trademarks for TWO HEARTED owned by Bell’s Brewery. The marks create the same overall commercial impression. Furthermore, the goods associated with your mark and the trademark for Two Hearted are identical.”
“Consequently, your use of THREE HEARTED is likely to create confusion, deception, or mistake among purchasers as to the origin or source of the goods/services, or convey to the purchasing public that the goods/services are approved by Bell’s Brewery or that there is an affiliation or connection between you and Bell’s Brewery.”
We have no issue with Northern Brewer other than this trademark infringement. We are flattered that they want to clone our beer-we have no problem with that. In fact, our staff recently agreed to work with Zymurgy magazine on a Two Hearted clone. Clones are not the issue.
Neither do we have a problem with homebrewers. Bell’s was founded as a homebrew shop in 1983 and has been in that business ever since. We are great supporters of the homebrew community and have underwritten many competitions, donated prizes to clubs, conducted tours with homebrew clubs, provided beer for certain AHA conventions, spoken at AHA convention, held an AHA membership rally, etc. etc. We have no problem with homebrewing or homebrewers. We love homebrewers.
Bell’s has worked long and hard to develop and market Two Hearted Ale. It is a very valuable asset for our company. As president of Bell’s it is my job to protect those types of assets. That is my responsibility to my employees and their families, and to the shareholders of the company. Never were we contacted by Northern Brewer asking permission to use Three Hearted. Upon learning of Three Hearted we moved to defend an asset that we own and have owned for many years. This is our right and duty. A trademark that is not defended becomes worthless. And while some of you may think that this was harmless flattery, by not defending against this we would be opening the door for further challenges against our mark.
At this time it would appear that Northern Brewer plans to respect and acknowledge our right to this trademark, as I understand that they are renaming their product. For this, we thank them. This is all we are asking for.
As regards Third Street, we filed for an extension to oppose, not an opposition. The use of the extension is often used so that two companies can sit down and see what each others marks are, and if they can co-exist. Often an agreement is drawn up between the two companies for this co-existence. We are currently in that discovery phase with Third Street.
I know many of you think that Bell’s was heavy handed in our actions. I’m sorry you feel this way. Bell’s has been on both sides of trademark issues-sometimes a winner and sometimes a loser. Twice in the history of Two Hearted we have been sent cease and desist letters regarding the labels. Additionally, we acquired the label by written permission of it’s former owner who gave it up many years ago. When these actions arise we try to respect others intellectual property and conduct ourselves with a modicum of decency. Trademark law is part of being in the consumer products business.
I hope this letter explains our position and that you will understand that we are just trying to protect what is ours. We are sorry if some of you feel offended by our action, but for us we felt it was the most professional and legally necessary means to an end. We hold no malice towards Northern Brewer, their employees or their customers.
Sincerely,
Larry J. Bell
President
Bell’s Brewery, Inc.
I’m a loyal Northern Brewer customer / supporter and a loyal Bell’s drinker / supporter – both of those statements hold true after this situation.
The first thing they did was get a lawyer involved instead of calling Northern Brewer to work out the issue. Enough said. Bell’s getting a little too big for itself, me things!
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oops; “me thinks”
I can see both sides, how a phone call may be more personal, but a letter will provide proof and documentation. In the times when almost anyone who can will slap a lawsuit or a C&D letter on anyone else, it becomes increasingly important to document EVERYTHING. So I support Bell’s in their actions, and I think they did the right thing. I also think they’re trying hard to remain personable with it, rather than cold and shrewd as in the case of 7 Seas v Dry Dock…
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The letter was well written but I think they could have done this without all the legal BS (i.e. a phone call).
It’s also a stretch to say that customers would be “Confused” when buying a kit. Home brewers tend to have a few brains :o)
Reminds me of the tap handle controversy with Lost Abbey and Moylans. In that case BOTH sides were wrong.
I agree with the above post, being a home brewer for 6 years I kinda feel insulted that I would confuse a 3 hearted kit for a six pack of 2 hearted. I can see both sides of the issue, but I wish phone calls and gentlemen handshakes still worked.
totally unnecessary and ridiculous. No Bell’s for me for awhile.
Hahaha. It’s a friggin homebrew kit! Protecting your trademark when it comes to a similar product is understandable, but no one is going to infridge on the sales of Two Hearted with homebrew kits. What if Bell’s had a beer trade marked under the name “Homebrew ale”? Would that mean homebrew kits would not be able to be sold as such?
This is the type of thing that sets big, corporate breweries apart from true craft breweries. It’s the same kind of bullying that AB is famous for, and craft beer lovers (and homebrewers..of which almost EVERY professional brewer started out as..) will keep that in mind when shelling out good money during hard times….Especially for overpriced products.
Bell’s brewery apparently has a good PR department now too… To even think that a customer wouldn’t be able to tell the difference is just basically a lie. I would love for them to pick 100 people out at random, not even homebrewers, and put the two products on a table and asked “Which one is beer?” How many people do you think are going to choose the tub of LME, grains, hops and yeast? None… because people aren’t idiots, that title is reserved for Mr. Bell.
Ridiculous and stupid. There’s no need to defend this against a bunch of ingredients used to make a beer similar to it. Did the lawyers not realize this isn’t beer being sold?
Fuck Bell’s for not apologizing and retracting the letter. That was the only move that would make any sense.
First and foremost, it is likely that their lawyer sent this without knowledge of what Northern Brewer is. And honestly, I think that’s ok. If it is a true infringement, the letter does its job. If not, the second party can respond to defend.
I hate to say it, but I can see this being a valid case for Bell’s. You’re right in saying that an ingredient kit is not a beer, and yes, people would be stupid for thinking the two had anything to do with each other. But you get into a gray area. Homebrewer guy makes Three Hearted Ale, invites friends over, says “drink my Three Hearted Ale” and it sucks. Friends go to store, see Two Hearted and think, “That beer sucks!”
Is that a stretch? Sure. But I see nothing wrong in a company protecting its brand when they’re in the same general business. This isn’t like Monster cables suing EVERYONE with “Monster” in their name.
As mentioned above – the first step doesn’t have to be a C&D. The legal issue here is pretty clear, but there are ways to be courteous about it.
So if a customer buys the kit, their intention is to make beer, right? And if they give one to a friend and say “this is three hearted ale” and his friend asks where he got it and he says “Northern Brewer,” that is going to lead down that pathway. The similarity is absolute. Now imagine that the homebrewer screwed up but doesn’t know how different it is because he’s not a great brewer. Now there is an association of a bad beer with Two Hearted. I’m not advocating for Two Hearted, just spelling out a real world scenario where the confusion could become real.
And re: Homebrew Ale, I don’t think that that would be able to be trademarked…
And @Jeff, actually a very small percentage of commercial brewers are former homebrewers…
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Don’t tell us in one paragraph that you were unaware of NB or its products until just recently and then in the next tell us how in touch and involved you have been with the homebrew community for the past 25 years. Give me a break…
Bell’s can [removed] off. I won’t be drinking their products anymore.
@Tom:
Thanks for choosing to not drink Bell’s products. More for me to drink.
I think the people who are saying Bell’s had other options are a little naive. Larry is correct in saying if they don’t protect their trademarks, they will lose them. As someone who has visited Northern Brewer, and seen the Three Hearted name, I knew it was a matter of time before the C&D would come. You make a product that is close in name, it will ruffle feathers.
And Devil’s (Beer) Advocate, but suppose someone made a 750ml Belgian style beer, and named it Judgement Night or made a wild ale named Duck Gueuze Gueuze. Bet Lost Abbey would be steaming about it.
Surly doesn’t seem to mind Northern Brewer reproducing its entire line of year-round beers. In fact, they partnered with them to bring the ACTUAL, OFFICIAL VERSIONS of the beers.
Face it. Some companies are made up of nice guys, and some other companies are Bell’s.
It’s a win – win for everyone now. Northern Brewer gets some publicity out of this. they get to change their name and have a cool story behind the name – which also advertises Bell’s Beers.
win – win.
In order to keep others from swooping in and challenging their Two Hearted trademark (which they state is a regular occurrence), Bell’s MUST provide WRITTEN EVIDENCE that they are actively defending their trademarks.
Thus, unlike what you idiots think, a phone call WOULD NOT SUFFICE. You need lawyers involved in cases like these or you will lose your trademark. End of story. Y’all bitching at Bell’s are focking idiots.
There are certainly people here that may not understand trademark law. You got that right. But there are others here who are only questioning how Bell’s went about it. You can still make a phone call to work it out AND send a cease & desist to satisfy the legal requirements. It’s not necessarily a one-or-the-other choice.
Beersage hits the nail on the head. If Bell’s calls first, works out the issue, and THEN sends the C&D letter, Northern Brewer never feels a need to publicize the issue and this story has no legs.
It’s because Bell’s actively chose to be a lousy, reactionary neighbor that any of us are even talking about this story. The golden rule holds true, even in the business world. Do unto others, Bell’s.
I’m not an expert on this, but the most important and overlooked part of Larry’s statement is…
“A trademark that is not defended becomes worthless”
If Bell’s let NB get away with this, the next person could come along and brew a True Hearted IPA and because Bell’s did not defend themselves against Three Hearted, the law might just let that other brewer have True Hearted IPA.
Bell’s HAD to send that letter. If they didn’t, then ANYBODY could steal anything they do.
It’s what owning your own business forces you to do. If you don’t then others can just come after you and steal everything you do.
Any other brewery that was big enough to have valuable assets would do the same thing. If they didn’t, I would argue that they are foolish.
You guys that are writing off Bell’s over this, need to check your agenda’s at the door and learn to be fair and equitable.
Personally, I have no problem with either of these companies but, if anything, NB was being a little naive and perhaps they should have called Bell’s in the first place and asked if they could do this.
Why put this on Bell’s? They didn’t initiate any of it, they are just responding. The lack of communication falls clearly on NB.
No big deal if they aren’t fighting it AND if they aren’t spreading any ill will over it to their own customer base.
If they are expressing ill will over the incident to their customers, I would be disappointed in them and not Bell’s.
But, I am not conjecturing any of those things to be occurring, so mistakes are made by well meaning people. No big deal. Straighten it out and move on.