20In the beginning of every trademark representation I undertake where a graphic design, or logo, is involved, I always ask the client one question: do you know where your graphic designer got their inspiration? I’m not asking this in order to further my artistic understanding or ability (I have little and less of both). I am asking this very important question in order to, potentially easily and cheaply, save my client a large chunk of money, time and heartache. I ask this question not only to ascertain any possible trademark conflicts (which I may be able to track down through a thorough trademark search), but also to determine whether there might be a potential copyright infringement (which is much less easily ascertainable through searches).
Central City Brewing’s Detective Saison beer (left, before it was changed), juxtaposed with Powers (right).
One of our friendly brewing neighbors to the north (in Canada) recently learned this lesson the hard way. Central City Brewing came up with a new brew, “Detective Saison”, and engaged a graphic design company to create a logo to place on the bottles of the new brew, once produced. Unbeknownst to Central City, the graphic designer happened to get the idea for the label from the comic book series, Powers. To make matters worse, Central City only learned about the copyright infringement hours before the beer was due to be released in stores. To correct the issue, Central City had to pay for all new labels, with a new graphic design, and reapply the new labels over 24,000 bottles in order to properly correct the infringement. Luckily, they caught the issue early enough that they avoided selling any bottles under the copyright infringing label, and therefore avoided a lawsuit, and some hefty legal fees (to go along with whatever they might have lost in a copyright infringement action).
Central City’s new Detective Saison label
Central City’s new label does bear some similar characteristics as far as the idea is concerned, but an idea is not copyrightable. It is the artistic expression of the idea that is copyrightable. This tale underscores the importance to asking and understanding where your graphic designer’s inspiration came from. Doing so could save your brewery a lot of money, stress, and frustration.
I also recommend to my brewing clients that they make sure that they own the copyright for any graphic design commissioned. This can be accomplished through a contract with their graphic designer. Contracting for your graphic designer to indemnify you in the event of a copyright infringement is also a good method to encourage the designer to avoid committing any potential copyright infringement. Doing these simple things up front, and taking the time to make sure it is done correctly, can save a lot of time and money later.
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