This one’s for beer people, but really it can apply to trademarks in any industry. As a craft beer enjoyer and trademark attorney working with breweries, the saturation of the craft beer market is no secret. The last couple years have seen the closure of many beloved small breweries and a few big ones too. At least one journalist blames this decline on colorful labels, funny names, and tallboy IPAs that get warm too fast because he doesn’t own a big enough coozie. The Brewers Association disagrees and backs up their position with actual facts.
Either way, more breweries than ever are closing their doors — including some mainstays like 21st Amendment, Iron Hill, Jekyll Brewing, and Old Ox, that were around for decades. When these businesses close, their trademarks — often built with years of creativity, community engagement, and marketing investment — are left behind, creating both a loss and an opportunity.
The wild world of beer trademarks
A big reason “wacky” beer names exist is because the beer trademark landscape is more crazy and crowded than a New Found Glory mosh pit (millennial reference alert!). If you’re applying to register a beer mark, your mark can’t be the same as or similar to any other mark for (a) beers and breweries, (b) wine and wineries, (c) any other spirits or alcoholic beverages or mixers, and (d) bar and restaurant services. Finding a name that’s not being used is harder than the proverbial needle in a haystack. (Yes, HAYSTACK is registered to a vineyard and has blocked several attempts by breweries to register marks containing the term. HAYSTACK NEEDLE is also registered for spirits.) But trademarks that were registered by now-defunct breweries have already run the gauntlet.
Turning abandoned trademarks into new opportunities
For surviving and growing breweries, one of the least discussed opportunities is the acquisition of abandoned trademarks from shuttered breweries. A craft beer brand name, logo, or label design that was already registered with the U.S. Patent and Trademark Office (USPTO), has essentially kept that little patch of trademark ground clear for the duration of its registration. If the prior owner has stopped using the mark and its registration has been or will be abandoned, a savvy brewery can lawfully adopt or acquire that mark—provided the process is handled correctly.
Determining whether a mark is truly abandoned
The first step is determining whether a trademark has truly been abandoned. A mark is abandoned when the owner is no longer using it and has no intent to resume use. Under U.S. trademark law, a mark is presumed abandoned after three years of nonuse, but the reality is more nuanced. Sometimes a trademark registration expires, but the owner is still using the brand in a particular region or city. Other times, a brewery may have gone out of business entirely, with no remaining rights in the name as of the date they shut down. Or the brewery may have filed bankruptcy and its IP was sold off. This requires careful investigation. A little digging into the prior owner’s social media and business filings can usually uncover whether the mark is genuinely abandoned or still active in some form.
Filing a new application before it’s too late
Once a mark is confirmed abandoned, the most straightforward option is to file a new application with the USPTO for the same or a similar mark based on your intended use in commerce. Do you need to actually wait for a prior registration to be officially abandoned at the USPTO? Not necessarily.
Let’s take the name of 21st Amendment’s mainstay beer, Hell or High Watermelon, as an example. This registration, U.S. Reg. No. 3699643, was renewed in 2019 and doesn’t come up for renewal again until 2028. So it won’t abandon on its own until mid-2029. What can you do if you want to register the mark HELL OR HIGH WATER LAGER for your own brewery? First, research the status of the rights. Multiple news articles say that 21st Amendment has closed for good and is not filing for bankruptcy. The trademark is owned by 21st Amendment Brewery Café, LLC, which is the entity that has closed. It therefore appears that the trademark has not been sold, will no longer be used, and is owned by a defunct company. Second, if you’re feeling froggy, file your trademark application right away before someone else beats you to the punch. Third, when your application is blocked by 21st Amendment’s live registration — which will happen — file a petition to cancel that registration on the ground of abandonment. Given that there is no owner to oppose a petition to cancel, you should win by default. Voila, the blocking registration will cease to exist, your application will be approved, and you’ll grab a valuable new name that’s not overly wacky or weird (unless that’s what you’re looking for). In short, don’t sit and wait for existing registrations to actually abandon before taking action. Talk to me about how to get in the door sooner.
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Abandoned craft beer trademarks: A gold nugget in a shit sandwich
