-Martha Engel, Attorney
Indeed Brewing Company, a popular brewery here in Minneapolis and a favorite of mine, announced that they were revamping their acclaimed packaging. A story in the Minneapolis-St. Paul Business Journal unveiled their new packaging:
As a really nicely executed design, it de-clutters the look of the can while keeping the well-known artistic features and color palette of their packaging.
As the number of breweries, wineries, and distilleries skyrockets, there are abundant opportunities for creative agencies to get involved in conveying the company’s story through their marketing and packaging. But while navigating these opportunities, there are important considerations regarding trademark usage and compliance with federal labeling guidelines that creative agencies should keep in mind. Here are my three tips for elevating your design work:
1. Label approval can be the pits. In my discussions with owners in this industry, one of the significant (and frustrating) challenges to getting product on the shelves is label approval from the federal government. It can take about a month for the label design to be reviewed by the TTB, and a new approval is required at least when you change the class or type of product, the brand name, the address, or the actual bottler or importer or add when you add new graphics, pictures, or text with some exceptions. The TTB has strict guidelines about what must appear and how it must appear, and also what must not appear on a label for alcoholic beverage. There are also separate state guidelines. If you’re servicing clients in this industry, become familiar with these guidelines. Some are seemingly silly – like that a Kolsch beer must specifically say “Kolsch style ale” – but failing to meet them may mean a re-work of the design or a delay in product being released.
2. Know your client’s trademark registrations. Your client may have trademark registrations in a word mark for their house brand, and a revised logo doesn’t generally affect that registration but should be a consideration when re-designing a logo. As a disclaimer, I’ve only seen the above view of the new cans. For its house brand, Indeed Brewing Company only owns a trademark registration for a word only mark as INDEED BREWING. The images of the can shown above are unlikely to be accepted as specimens for maintaining the mark INDEED BREWING because the mark INDEED bisects BREWING and COMPANY, appearing almost as BREWING INDEED COMPANY. The views shown above do not show use of the mark INDEED BREWING.
3. Know what your client could own. Are you creating new valuable source identifiers for your client? It can be helpful to have a trademark search conducted for at least the major elements of a new design to see whether they are available for your client to lock up – whether it’s a tagline like on the upper band of the can or perhaps a logo or icon that’s included on the packaging. Earlier this month, Indeed Brewing Company applied for WE ARE THIRSTY CREATURES INDEED – the tagline on the upper band. The use of the new logo on the mark could also help the brewery lock up INDEED as a trademark for beer, where prior use may not have supported registration of INDEED alone. You also want to avoid design choices that may be confusingly similar to marks owned by other brewers.
Working with a trademark attorney who understands these labeling issues early on in the process can help save valuable time (and money) in revisions to packaging to address label approval and trademark issues.