The “drink local” movement has been a boon for local craft and nano-brewers. However, boasting your brewery’s local credentials can get you into trouble if not done carefully. A label that is held to be “geographically misdescriptive” can cause problems with both the TTB and the Trademark Office and could potentially even lead to a false advertising lawsuit.
The TTB’s regulations prohibit labels that contain any information that “tends to create a misleading impression.” Specifically, a beer name that contains a geographic indicator generally cannot be used unless the beer actually originates from the named geographic area. However, problems can sometimes be avoided by adding a qualifier like “type,” “style,” or “American.” In addition, the TTB considers some geographic terms to be generic of a certain style of beer, such as Russian Imperial Stout or India Pale Ale.
Similarly, the US Patent and Trademark Office will refuse registration of any mark that is found to be “geographically misdescriptive.” This means that (1) the term is primarily understood as referring to a geographic location, (2) the beer does not, in fact, originate from that location, (3) purchasers would reasonably think that the beer does originate from that location, and (4) the geographic indicator would affect the decision to purchase. In general, the Trademark Office will allow an application if the beer is made in the referenced location, or if it is sold there or the ingredients are sourced from that location.
Similar geographic issues have been raised in several recent lawsuits. Many brewers heard about the suits against Anheuser-Busch over its marketing of the Beck’s and Kirin brands. In both cases, the beers were historically associated with another country but are now made in the US. The suits accused Anheuser-Busch of misleading customers into paying more for these beers because consumers mistakenly believe that they were foreign or imported. Similarly, in Dumas v. Diageo, City Brewing was accused of misleading customers into believing that Red Stripe beer is brewed in Jamaica by advertising the beer with slogans such as “The Taste of Jamaica”; however, that case was dismissed and decided in Red Stripe’s favor.
So what is a brewer to do? First off, make sure any use of a geographic indicator is factually true. Brooklyn Lager Beer must be made in Boulder, Colorado. If it is not, consider a name change or, at a minimum, use a modifier such as “Brooklyn-style Lager” and avoid packing your label with visual icons of Brooklyn that could support a mistaken impression. Finally, if you receive a rejection from the TTB, resist the temptation to use the questionable term or design on non-label marketing. In the early 90’s one of Rogue Ale’s labels was rejected during the COLA process for including an American Flag, but Rogue continued to use the design on glasses, shirts, and tap handles. When a TTB agent spotted this, Rogue was ordered to cease and desist and had to destroy over $20,000 in promotional goods. It’s far better to change the design before investing in a while run of labels, packaging, or marketing materials than to have to junk materials that have already been bought and paid for.