Bell’s Brewery sent our friends at Northern Brewer a cease and desist letter regarding the their Three Hearted Ale kit, a recipe kit styled after Bell’s Two Hearted Ale.
Bell’s owns the trademark for Two Hearted Ale and as such is charged with protecting that mark from others that might dilute or tarnish that name. Most of the time, trademark issues aren’t purely black and white, as is the case with the Three Hearted Ale kit. Bell’s (or rather their lawyer(s)) decide what they see as a threat to the mark and what they see as something that they can let slide. As The Gambler once said, “You’ve got to know when to hold ‘em, [and]] know when to fold ‘em…”
I understand Bell's point on this, and their need to protect their trademark. But really? Bell's put the following excerpts of the letter on their website:
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."
It seems highly unlikely that anybody would confuse a box of syrup, hop pellets and yeast for a tasty 6 pack of beer. The end result is the same, but the route to get there couldn't be much different. They go on to say that clones are not even the issue. And they love homebrewers!
Northern Brewer, after an initial shocked post on Facebook, took the high road in their response:
But this morning I'd like to take a moment to spread some calm:
The fact that a homebrew recipe kit became noteworthy enough to draw legal attention is a powerful statement of the love for brewing that made this kit one of our best sellers in the first place. Your choice in purchasing this kit, and likely your attraction to it via your enjoyment of its commercially-brewed muse, is the real story here.
You may very well have come to love this recipe kit because of your experience with the Bell's brew that it emulates. So please don't find yourself at odds with Bell's for protecting what they have, in kind, created. Bell's Brewing is amongst the finest producers of microbrewed ales, the world over. Their business obligations and the craft of the people who brew their great beers are separate entities, as any pro brewer can attest. I ask of you, our loyal homebrewers, not to call out or boycott Bell's for fulfilling their legal obligations. Remember, the people who acted on behalf of Bell's in instigating this change did so because of their commitment to their product, just as you choose NB because of your commitment to your product.
Let's be happy that we live in a nation that not only allows for such creativity to produce a beer that catches the tastes of brewers and beer lovers like ourselves, but a nation that gave us the freedom merely thirty years prior to have a hobby that so benefits our creativity and subsistence.
Cheers to our fine customers AND the fine people who make Bell's beer!
Now I'm feeling the love, not the lawyer.
Pity they couldn't have agreed to co-exist, much as Surly Brewing and Surly Bikes have for the past 5 years.
There is absolutely no affiliation between Surly Bikes and Surly Brewing, except for the fact that they like bikes and we like beer. After the initial shock of finding out another company in town shared our name, our eyes lit up with cross-promotional ideas, errr, free beer. Either way, Kenny Bloggins, Sovern, pal Mike and I rolled the party bike up to north Minneapolis. As we were locking up our bikes, the door swung open and a girl wearing a "Surly Girl" t-shirt said, "Are you the guys from Surly Bikes? Come on in and have some beers". She was the wife of the owner and she made us feel like rockstars. The brewery was packed and the beer was flowing. They currently have two beers, but unveiled a third just for the open house. They even had special editions of their beers, one brewed with coffee and the other was aged in a bourbon barrel. Oh my god, they were both excellent. I told myself, I'm going to stay here and drink until they cut me off. They tapped a dry hopped beer with Amarillo hops later, but we'd gotten on our bikes by then because we'd had our share of free beer. The brewery was beyond impressive and it left me with the feeling that I'm happy to share the Surly name with a company like that.