Design That Deserves a Toast: How IP Law Influences Alcohol Branding

In January, there is an official celebration day known as National Beer Can Appreciation Day. That’s really a thing; it occurs once a year to celebrate January 24, 1935, the historic day when beer was first sold in cans.

So that momentous occasion is inspiring us in the Intellectual Property Services Group here at McBRAYER to explain the types of intellectual property protections available to protect the appearance of beer cans. 

PATENT LAW: Under patent law, if someone were to invent an especially “new and useful” version of a can in which to store the libation, the innovative function or appearance of such a can could be protected under patent law. Think pull tabs which were invented in the 1960s, those pesky things bemoaned by Jimmy Buffet who sang--“stepped on a pop top, cut my heel, had to cruise on back home.”

But as for protecting any unique appearance of beer cans, the more typical protections will be under the trademark and copyright laws

TRADEMARK LAW: This is the type of legal protection available for unique indicia used to indicate a specific source of a good or service, defined under U.S. Trademark law to be  “any word, name, symbol, or device”  which is used “to identify and distinguish” one merchants goods “from those sold by others and to indicate the source of the goods.” This includes unique packaging which we lawyers in the Intellectual property field refer to as a product’s “trade dress” that is to say, the “dress” the product “wears to the market.” If unique enough “to identify and distinguish” one merchants goods “from those sold by others,” the trade dress is protected as a trademark. The classical example relating to product beverages is of course, this one. Unless you have spent too much time with Jimmy Buffett or others destroying too many of your brain cells, you should instantly recognize this bottle design as identifying a Coca-Cola product and distinguishing it from other soft drink brands. It is a registered trademark--U.S Trademark Registration No. 1,057,8840.

The same is true, of course, relating to alcoholic beverages. This one, to alcoholic beverage aficionados, is likely just as recognizable as the Coca-Cola bottle shape. It, of course, is the famous dripping red wax seal readily associated with Maker’s Mark Bourbon. 

Indeed protecting alcoholic beverage bottle designs under trademark law is becoming quite common  here in Kentucky, the “Birthplace of Bourbon,” for instance, the award winning bottle design adopted by  the Kentucky Peerless Distilling Company shaped somewhat like a bourbon barrel perched on a pedestal shown here which design is the subject of U.S Trademark Registration No, 5,384,759 as well as the Green River Distilling Company horseshoe shaped bottle which is approved for registration as a trademark, U.S Trademark Application Serial No. 99278428.

And so too are unique-looking beer bottles protected as trademarks; for instance, the Michelob Ultra bottle, which is the subject of U.S. Trademark Registration No. 5,686,268, and this especially unique beer bottle shape, which is the subject of U.S. Trademark Registration No. 1,585,726. 

But more to the point here, we are not celebrating National Beer Bottle Appreciation Day, we are celebrating National Beer Can Appreciation Day. Because the “shape” of beer cans tend to be pretty conventional, such shapes are not typically the subject of trademark protection, but the unique decorative appearance of beer cans could just as easily “identify and distinguish” one merchants goods “from those sold by others” so as to be protected as a trademark, for instance these two examples from the Against the Grain Brewery in Louisville.

COPYRIGHT LAW:  Likewise, the vendor of such decorative appearing cans could even seek simpler and less expensive to obtain protection under copyright law. A merchant can so protect any original artistic and literary works used to promote its products, works defined under U.S. Copyright Law as “original works of authorship fixed in a tangible medium of expression” including “literary works” and “pictorial [and] graphic works.” So, in addition to potential trademark protection, these beer cans could easily be protected under copyright law if they are “original works of authorship."

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So, in honor of National Beer Can Appreciation Day, let us celebrate the libation. Drink up wherever in the world you may be—

Cheers….Salute.…Salud.…Prost….Kanpai….Cin Cin…. Na zdravi…. Biba….Sei gesund.

Jack A. Wheat is a Member of McBrayer PLLC.  Mr. Wheat focuses his practice in the areas of intellectual property, trademarks, copyright, entrepreneurial law, infringement litigation, and hospitality & tourism law from the firm's Louisville office. Contact Mr. Wheat at jwheat@mcbrayerfirm.com.

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