5.30.13 BEER WARS

This article originally appeared in the 5.30.13 issue of Metroland.

The internet blowed up real good last week over a dispute between Vermont’s Magic Hat brewery and West Sixth Brewing Company, a small brewery in Lexington, Kentucky.  Seems that about a year ago West Sixth started bottling brewskis that it called “6”.  The label for 6 featured the number 6 in a very stylized font along with a little cartoon star.  Magic Hat has for years been selling its “#9” beer, with the vaguely psychedelic labels we’ve all seen... using virtually the same stylized font and an extremely similar cartoon star.

            A bunch of you forwarded to me a West Sixth webpage entitled “No More Magic Hat” where the Kentucky brewery is squealing like a stuck pig about being “bullied” by Magic Hat over the 6 logo.  This went seriously viral, with a Facebook page, a petition, Magic Hat getting bombed with emails, and various blogs and other commentators (including many I respect and admire) uniformly condemning Magic Hat for being some kind of corporate monster.

            I smelled a rat.  I’ve spent a good bit of my career dealing with corporate IP bullies on behalf of real victims, real little guys, real Davids taking on real Goliaths.  And something didn’t feel right about all of this.

            In a parlance that could be described as “forced breezy”, West Sixth claims on its website that an “enemy” is trying to “force us out of business by the filing of a silly and frivolous lawsuit.” Magic Hat is painted as an arm of some “international conglomerate” while West Sixth is portrayed as a teeny-tiny little neighborhood start-up.  And this big bad Magic Hat only has a registered trademark for the number nine and now they’re saying it’s the same as a six!  And Magic Hat has got “fancy New York lawyers.” And how can you help this poor, beleaguered company?  Buy their beer!  Sign a petition!  C’mon people, let’s get faced and fight the power!

            It all made me a little queasy.  A little too slick.  The passive aggressiveness was palpable.  And, as it turns out, it was deceptive as hell.

            Let’s start with the West Sixth webpage.  The brewery refers to itself as a “socially conscious craft brewery.”  Does that strike you as a little self-congratulatory?  I mean, if you have to say that you’re “socially conscious” at the top of your corporate statement (West Sixth strangely doesn’t include the “LLC” that’s part of its real name anywhere on its website), I’m thinking you may be trying a little too hard to be groovy.

            Magic Hat is, in fact, still a Vermont-based LLC and its brewery is still in Vermont, but it’s apparently now owned by a much larger corporation.   And yes, Magic Hat has registered only the simple trademark “#9”, but its labels are extremely distinctive and are protected at common law.  So West Sixth’s main argument, jumping up and down and yelling that a 6 is different than a 9, is totally bullshit.  I’d like West Sixth to answer these questions: Why the same font?  Why the same star?  Why the same colors on the labels? These are coincidences?  Really? 

            All of West Sixth’s anti-corporate nonsense obscured the fact that it’s not an innocent here.  It also played loose with the facts of how we all got here.  To quote Tom Verlaine: "I knew it must been some big set-up."

            Lawyers for Magic Hat contacted West Sixth last September complaining about the logo.  And they weren’t “fancy New York lawyers.”  It was Harter, Secrest and Emery, from Rochester, NY.  They also have an office in Albany.  Maybe one of their lawyers wrote your will or incorporated your business.   They’re a fine, completely unfancy upstate law firm.  West Sixth, in turn, responded through the law firm of Stites & Harbison, one of the oldest law firms in the country, with 260 lawyers working in eight offices around the South.  For a couple of months the lawyers went back and forth, and seemed very close to settling the case. West Sixth agreed to change its logo so it was less confusing.   Then West Sixth reneged on some of its concessions and told Magic Hat that it would create a public relations nightmare if a lawsuit started.  So Magic Hat sued.  Using attorneys from Nashville, Tennessee.

            I don’t know if Magic Hat has got a great case, but I think they’ve got a good one.  There’s allegations that West Sixth was well aware their logo looked a lot like Magic Hat’s from the git-go, and the fact is if they didn’t, they’re as stupid then as they are disingenuous now.

            Magic Hat has now amended their complaint and asked the court to enjoin West Sixth from continuing its publicity campaign to ruin Magic Hat’s reputation, which is worrisome because it gets into free speech, robust criticism, all that stuff.    I think Magic Hat has been smeared, but I really don’t want a federal court issuing orders stopping anyone from saying something before they say it.

            It’s a mess, but it’s not what everybody seems to think it is.

Paul Rapp is an IP attorney and avid consumer of liquids who is going to buy a sixer of Magic Hat #9 this weekend and drink it like the fancy lawyer he is.