Left Hand, having dedicated significant time and money creating these delicious options for fans of their beer is now seeking to protect that investment with trademark protections. In 2011 they sought to trademark the phrase “Milk Stout Nitro” and the term “Nitro”. The former was a typical move to protect a brand that is quite popular and deservedly that caused no reaction. The later term, “Nitro” when recently reported on cause a firestorm across social media with all sorts of accusations and objections.
On Wednesday Left Band Brewing Company felt compelled to respond to the loud and accusations being lobbed at them from critics, media, and even fans. They wanted to clear up a few things. I am reprinting their statement here in its entirety to preserve context:
We hear your concerns and would like to respond to your questions regarding the Nitro trademark application. Left Hand Brewing started the trademark process for “Milk Stout Nitro” and “Nitro,” names in 2011 when we were the first US brewery to bottle nitrogenated beers. Our goal has not changed but has been recently misunderstood. We are seeking to protect the name of our best selling products that we have spent a significant amount of time and resources to develop, not the style – not nitrogenated beers. Unfortunately, much of what we are seeing being picked up by media and shared recently is to the contrary. We do not wish to halt craft innovation or stop nitro-style beers from being produced or poured. We are simply trademarking the name our bottled beer has become so well known for. We believe another beer named simply, “Nitro” or “Milk Stout Nitro”, would confuse the public and dilute the strength of the brand we have worked so hard to build.
Left Hand will continue to be supportive of our craft brew brethren. In fact, we just returned from Oskar Blues, also in Longmont, Colorado and famous for revolutionizing craft beer in cans, where our two founders and employees celebrated the innovation of Oskar Blues’ Old Chub Nitro in the can. Left Hand Brewing will not be pursuing any action against Oskar Blues (who has filed for their own trademark for Old Chub Nitro) and is congratulatory for this major craft accomplishment – nitro in the can.
So while trademarking a name is not uncommon in the industry, we understand that the Nitro trademark can raise many questions. Left Hand’s motivation is not to hinder competition but to protect the future of our brand, our employees and the integrity of products. We hope that our fans and industry friends will see by our actions that our intentions are in line with being a leader in the craft industry that continues to support our community and offer quality beers that provide the ultimate drinking experience.
The Left Hand Brewing Team
Left Hand Brewing Company has a pretty stirling reputation when it comes to playing nice in the craft beer industry. They even discuss their open and collaborative efforts in that response to work with Oscar Blues to create a competing nitrogenated beer with Old Chub Nitro. Personally I am of the opinion that Left Hand Brewing Company has no desire to be a trademark dictator and abuse the power of the term.
If you look at their label for their Milk Stout Nitro you notice that the word nitro is much more prominent on the label than the Milk Stout and I understand their concern that if another brewery were to call a beer Nitro with a white on black label that there could be intentional market confusion which is bad for Left Hand Brewing Company.
The solution to their problem, however, is not to be solved through having exclusive trademark rights to the word ‘Nitro’. That is too much power for one brewery to have regardless of intention. We reported on the West Sixth vs Magic Hat debacle where astute readers should have picked up that including the number nine in a beer means potential legal challenge by Magic Hat. A legal conflict over a specific number.
If Left Hand Brewing Company were to be given the trademark on “Nitro” they would effectively have the power to sue someone for trademark violation for using the term nitro. This means that any brewery that replicated Left Hand’s technology for bottled nitrogenated beer would be unable to use the word nitro on their label to advertise this fact to consumers. It should be rather evident that this could make it very hard for a competitor, friendly or otherwise, to release a nitrogenated beer without cooperating from Left Hand Brewing Company.
I am a firm believer that Left Hand will use this power for good and not evil. At least right now but absolute power corrupts absolutely and that would be what Left Hand would have. Facebook user Pat Loftis left a comment that captured my thoughts aptly:
Trademarking “Nitro” is like trademarking “Monster” which turned them into America’s most hated brand amongst audiophiles. Your decision to not sue Oscar Blues for using a word that describes a naturally occurring gas is the right thing. It will also be the right thing to not sue other craft beers who use it.
Monster, the high-end audio/video cable company has been known to have sued anyone and everyone who has Monster in their company/product’s name. From a mini-golf company to the job hunter site. They have built a brand identity on the scorched earth of smaller companies with legitimate right to an English work in markets that don’t compete.
Similarly Marvel and DC have a collective trademark on the term superhero. While I am unaware of them abusing this trademark they have the power to sue independent creators who want to use the term to describe their heroes. If you have a self-published comic book and you call your hero a superhero you may get a letter from Marvel and/or DCs legal department. God help you if it become popular enough to rival Marvel and/or DC. You may get a lawsuit for trademark violation damages.
I think Left Hand is attempting to protect their brand. I think Left Hand as a company has been a very good craft beer citizen. I don’t think they would immediately begin to abuse this power. My fear is that when you have such a powerful hammer eventually problems are going to look like nails.
If I were working for Left Hand I would solve this problem in a much easier fashion. I would declare publicly that I will turn the trademark over the Brewers Association so that they can defend the use of the word nitro to only be used when applicable. I would continue the very reasonable trademark effort on “Milk Stout Nitro” and I would redesign my label to emphasis the Milk Stout over the nitro. Then there is less likely that a competitor advertising nitro will cause market confusion in the same way that those who name a beer IPA don’t have market confusion with other beers named IPA because the labeling makes it obvious which beer you are buying.
It is a solution where everybody wins and no one has the power to pick winners or losers.