Your Beer’s Name Inspired By a Famous Book, Movie or Song? It Might be Infringing. – Warner Bros. Challenges Brewer Over Golden Ticket Beer.
This is a big deal in brewing. Not just for Star Wars themed beers, but also the thousands of derivative names and label art that are a tribute to some brewery’s favorite thing. As evidenced by this recent opposition filed by Warner Bros., in Southern Sky Brewing’s trademark application for the “Golden Ticket” for beer (a …. wait for it… chocolate milk stout), paying homage to your favorite books, movies, songs or other trademarked or copyrighted material without proper licensing or analysis for potential “fair use” can draw the ire and potential legal action from the rights holder.
Merchandising opportunities for copyright and trademark holders abound. Especially in food and beverage where partnering between companies and creative content is as American as E.T. and Reese’s. From breakfast cereals and soups to popsicles and yogurt, licensing and cross-promotional branding between food and entertainment is an expected part of modern media’s push to promote movies, television, books and the host of original endeavors that amuse us. So it’s no surprise that Warner Bros. went to the mat when a brewery in Georgia applied to register “Golden Ticket” for beer, arguing that its famous mark is something many companies pay to license for other products.
While the document at paragraph 21 does mistakenly call the website “Taphunter” the brewery’s website (linked above), the rest of the allegations are clear – the use of the name Golden Ticket for a chocolate beer trades on the goodwill created by the Charlie and the Chocolate Factory movies in an attempt to profit from that goodwill. The studio also claims use of the name will cause confusion as beer drinkers may believe there is an association between the movie-maker and the beer-maker because, admittedly, Warner Bros. extensively licenses the mark for promotion of many different goods. (If you care to read it, a public safety jibe is even thrown in at paragraphs 35 and 36 arguing, you guessed it, naming an alcoholic beverage after a kids’ movie promotes underage consumption.)
Given the parallel between a chocolate beer and a chocolate bar, it’s unclear whether use of the term “Golden Ticket” conveys an authorized association that Warner Bros. is right to object to or whether it would rise to the level of parody:
“parody is defined as a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s owner … A parody must convey two simultaneous — and contradictory — messages: that it is the original, but also that it is not the original and is instead a parody.” People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359, 366 (4th Cir. 2001)
That last part, usually needs to happen by ridicule or joke to make it a parody: “parody relies upon a difference from the original mark, presumably a humorous difference, in order to produce its desired effect.” Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1486 (10th Cir.1987)
For the most part, these cases haven’t popped up in the beer world as frequently as we would expect given the rise of craft homage beers. It could just be that rights holders aren’t out there policing small infringements like this and that it’s really only when someone tries to register a mark that big rights holders like movie studios or publishers will sit up and take notice.
The takeaway here is clear. You need to run this down to ensure a fat cease and desist or worse, lawsuit where you end up paying fees and damages doesn’t wreck your business because you thought you were making a tribute to something you love. If what you’re creating doesn’t fall into a protected category of fair use, then pursuing a license from the creative content’s owner may be the best way to ensure you’re within your rights and being creative yourself and not just looking to make money off someone else’s property.
