This article originally appeared in the 5.30.13 issue of Metroland
he 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.
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
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.
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
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?
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."
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
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.
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.