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Turn It Upside-Down

by Paul Rapp on May 29, 2013 · 8 comments

 

The Internet blowed up real good last week over a dispute between Vermont’s Magic Hat brewery and West Sixth Brewing Company, a small brewery in Lexington, Ky. Seems that about a year ago West Sixth started bottling brewskis that it called “6.” The label for 6 featured the number in a very stylized font along with a little cartoon star. Magic Hat has for years been selling its “#9” beer, with the vaguely psychedelic labels we’ve all seen, using virtually the same stylized font and an extremely similar cartoon star.

Someone forwarded to me a West Sixth webpage titled “No More Magic Hat” in which the Kentucky brewery is squealing like a stuck pig about being “bullied” by Magic Hat over the 6 logo. This went seriously viral, with a Facebook page, a petition, Magic Hat getting bombed with e-mails, and various blogs and other commentators (including many I respect and admire) uniformly condemning Magic Hat for being some kind of corporate monster.

I smelled a rat. I’ve spent a good bit of my career dealing with corporate IP bullies on behalf of real victims, real little guys, real Davids taking on real Goliaths. And something didn’t feel right about all of this.

In a parlance that could be described as “forced breezy,” West Sixth claims on its website that an “enemy” is trying to “force us out of business by the filing of a silly and frivolous lawsuit.” Magic Hat is painted as an arm of some “international conglomerate” while West Sixth is portrayed as a teeny-tiny little neighborhood start-up. And this big bad Magic Hat has a registered trademark only for the number nine and now they’re saying it’s the same as a six. Magic Hat has got “fancy New York lawyers.” And how can you help this poor, beleaguered company? Buy their beer! Sign a petition! C’mon people, let’s get faced and fight the power!

It all made me a little queasy. The passive-aggressiveness was palpable. And, as it turns out, it was deceptive as hell.

Let’s start with the West Sixth webpage. The brewery refers to itself as a “socially conscious craft brewery.” Does that strike you as a little self-congratulatory? I mean, if you have to say that you’re “socially conscious” at the top of your corporate statement (West Sixth strangely doesn’t include the “LLC” that’s part of its real name anywhere on its website), I’m thinking you may be trying a little too hard to be groovy.

Magic Hat is, in fact, still a Vermont-based LLC and its brewery is still in Vermont, but it’s apparently now owned by a much larger corporation. And yes, Magic Hat has registered only the simple trademark “#9,” but its labels are extremely distinctive and are protected at common law. So West Sixth’s main argument, jumping up and down and yelling that a 6 is different than a 9, is totally bullshit. I’d like West Sixth to answer these questions: Why the same font? Why the same star? Why the same colors on the labels? These are coincidences? Really?

All of West Sixth’s anti-corporate nonsense obscured the fact that it’s not an innocent here. It also played loose with the facts of how we all got here.

Lawyers for Magic Hat contacted West Sixth last September complaining about the logo. And they weren’t “fancy New York lawyers.” It was Harter, Secrest and Emery, from Rochester, NY. They also have an office in Albany. Maybe one of their lawyers wrote your will or incorporated your business. They’re a fine, unfancy upstate law firm. West Sixth, in turn, responded through the law firm of Stites & Harbison, one of the oldest law firms in the country, with 260 lawyers working in eight offices around the South. For a couple of months the lawyers went back and forth, and seemed very close to settling the case, with West Sixth agreeing to change the logo so it was less confusing. Then West Sixth reneged on some of its concessions and told Magic Hat that it would create a public-relations nightmare if a lawsuit started. So Magic Hat sued. Using attorneys from Nashville.

I don’t know if Magic Hat has got a great case, but they’ve got a good one. There’s allegations that West Sixth was well aware their logo looked a lot like Magic Hat’s from the git-go, and the fact is if they didn’t, they’re as stupid then as they are disingenuous now.

Magic Hat has now amended the complaint and asked the court to enjoin West Sixth from continuing its publicity campaign to ruin Magic Hat’s reputation, which is worrisome because it gets into free speech, robust criticism, all that stuff. I think Magic Hat has been smeared, but I really don’t want a federal court issuing orders stopping anyone from saying something before they say it.

It’s a mess, but it’s not what everybody seems to think it is.

Paul Rapp is an IP attorney and avid consumer of liquids who is going to buy a sixer of Magic Hat 9 this weekend and drink it like the fancy lawyer he is.

 

{ 8 comments }

twelsh1 May 30, 2013 at 11:30 pm

I live in Lex. and you are right on the money. I posted some of my opinions, of course there were no reasonable or intelligent responses. Everyone just jumped on the bandwagon without reading the back and forth correspondence between the lawyers that had been going on for months. Those that did read it, still thought West Sixth was getting ran over by a corporate bully. WS and it’s owners aren’t some naive and non calculating business people. The main owner, to my understanding, worked and developed the internet software for Howard Dean’s campaign and then sold it to the NDP, which Obama used. I could say quite a bit more about what they have and are doing here in Lex. but it would be very lengthy. Let’s just say they are very calculating.

JoeJoe May 31, 2013 at 4:05 am

One of West Sixth’s owners is Ben Self, a venture capitalist and former technology director for the Obama ’08 campaign. The DNC hired his startup tech firm, Blue State Digital, to run the web aspects of the campaign. Blue State has since been sold to a corporate, presumably for many, many millions. Only one of the guys running West Sixth is a brewer. The other guys are business guys who jumped on the band wagon late. One hears out of Lexington they’re snapping up all the real estate around the brewpub. One suspects they have a lot more $$$$ for legal defense than they act.

JoeJoe May 31, 2013 at 9:31 am

Well it looks like they brought in some venture capital, renovated a nice building in a run-down area, and are buying more property in the area as hopefully the brewery will be an anchor for the gentrification process and values will go up. I don’t have any problem with this. In fact I like to see big shots who made it big bringing money back to their hometown and investing it.

Buuuut… let’s not fool ourselves that this is an innocent little lamb. We’re talking about someone who is extraordinarily saavy at crowd herding via the internet and who is very well connected politically. We are NOT talking about a passionate craft brewer who started his brewery on a shoestring budget and then fought the good fight against Bud/Miller/Coors for a couple of decades. We’re talking about business guys with strong capitalization who are jumping on a mature but still expanding business trend. I’m not sure why other brewers are so hasty to consider them brothers in arms.

John Wurth May 31, 2013 at 1:48 pm

Interesting take on the debacle!

West Sixth, however, does not make “brewskis that it called “6.””, it’s their corporate logo that uses the numeral 6 instead of spelling out SIXTH, which is similar to a “brewski” that Magic Hat brews called “#9″.

John Wurth May 31, 2013 at 1:50 pm

Oh, and they can, not bottle ;)

twelsh1 May 31, 2013 at 1:59 pm

I am all full bringing home the bacon, but not for throwing out the mostly minority community that surrounds your business. There is a HUD development that has been there over 25 years plus the Smithtown neighborhood which is older than that. I love to see older neighborhoods get a facelift and jobs but this isn’t happening. This reminds me of racial cleansing, with the attitude, I have this new business now all the poorer, minorities move or stay away from my territory, the better, richer majority needs this space for our beer drinking and socializing. Oh by the way, we need all the parking up and down the street, even the church parking lot.

You are correct in your posts as to their management and connections. How they can be seen as some poor start-up, which has a great Trademark and product is beyond ridiculous. I personally, think they knew about the likeness of their logo to MH but decided to go with it anyway. Let’s see if their political connections follow them in the courtroom.

Andrew Gregory May 31, 2013 at 9:16 pm

Hmmm. “…brought in some venture capital, renovated a nice building in a run-down area, and are buying more property in the area as hopefully the brewery will be an anchor for the gentrification process and values will go up.”

Anonymous June 2, 2013 at 8:46 pm

I think Magic Hat has been smeared, but I really don’t want a federal court issuing orders stopping anyone from saying something before they say it.