BREWDOG, the £1 billion Aberdeenshire craft brewer, did not get to where it is by doing things the easy way.
So when the estate of one of the biggest music stars who ever lived – Elvis Presley – opposed its attempts to trademark the name Elvis Juice for one of its beers the firm decided to engage in a David and Goliath battle rather than cave in.
The move was somewhat ironic given that BrewDog itself threatened a bar owner in Birmingham and prospective bar owner in Leeds with legal action over the potential infringement of its Lone Wolf and Punk trademarks, both of which it has registered in relation to alcoholic beverages.
Blaming its “trigger-happy lawyers” for the moves, BrewDog later published a blog in which it highlighted the importance of intellectual as well as physical property to its business.
“We own trademarks just like we own our buildings, our brewing equipment, and our dogs,” it said. “If someone stole our dog or our bottling machine we would not be happy, intellectual property is no different.”
It added: “People criticising us for defending our trademark is like people criticising us for not letting someone walk into our offices and steal our computers.”
However, in the same blog the firm noted that it would only seek to enforce its trademarks if “something really detrimental to our business is happening”.
This stance, said Patrick Cantrill, a partner at law firm Bond Dickinson, “re-enforces the BrewDog philosophy of being a laid back independent company”.
Elvis Presley Enterprises (EPE), which runs the late singer’s Graceland home and licenses Elvis-related products across the world, has taken a less laissez-faire approach.
The organisation has been trademarking the name Elvis Presley for decades, with everything from cups and dolls to clothing and fridge magnets covered.
While it only registered the mark in relation to alcoholic drinks in November 2014 that still preceded BrewDog’s Elvis Juice application by a year. Unsurprisingly, EPE objected to both that and BrewDog’s March 2016 application to register BrewDog Elvis Juice.
Last month the UK Intellectual Property Office found in EPE’s favour, with hearing officer Oliver Morris saying that “the average consumer will assume that the brand Elvis Juice is from the same or economically linked source as the brand Elvis”.
Noting that “the opponent has been successful”, Mr Morris refused to register the marks and ordered BrewDog to pay EPE £1,500 as a contribution towards its costs.
But, as Pinsent Masons legal director David Woods pointed out, this is not necessarily the end of the road for BrewDog and Elvis Juice.
“Anyone who tries to register a trademark containing the word Elvis without the permission of Elvis Presley’s estate is likely to be met with strong opposition,” he said.
“BrewDog will now need to decide what to do next and whether or not to try to continue with this battle.
“They can either change the name of the product or try to negotiate with Elvis Presley’s estate for permission to continue to call the product Elvis Juice, although the estate may be unlikely to have those discussions.
“One other option BrewDog may be thinking about is whether or not to attempt to appeal the decision.”
Neither BrewDog cofounder James Watt or the company’s patent attorney, Sharon Mackison of Glasgow firm Lawrie IP, was available to confirm whether the firm plans to go down the latter route. If it does it can either appeal to an intellectual property lawyer appointed by the Ministry of Justice or can lodge a full-blown appeal in the Court of Session.
Given that Mr Watt and cofounder Martin Dickie both changed their names to Elvis to see off what they called the “petty pen pushers attempting to make a fast buck by discrediting our good name under the guise of copyright infringement”, it seems unlikely that they would balk at the prospect of a courtroom showdown.
Not only does BrewDog thrive on the sort of publicity that would bring but, with Mr Watt and Mr Dickie each pocketing £50 million after selling a stake in the business to US private equity house TSG Consumer Partners earlier this year, it is a dispute they can well afford to fight.
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