So Has Rock Art Actually Won Anything?

The beer blogosphere has been filling up in the last twelve hours with news that viral Goliath slayer Rock Art Brewery has indeed bested its potential litigation rival Hansen’s Beverage Company. Details at this point are surprisingly scarce, with Rock Art’s own website only celebrating victory without defining its terms.

VICTORY!
America You have saved
THE VERMONSTER !!

Your voice has caused corporate america to rethink its position

We can continue to brew our beer as we have since 2006!!

Yea!!! huge victory for the people!!

POWER to the PEOPLE
POWER belongs to the people

In all the media accounts in the last twelve hours, only this detail seems to have emerged (from WCAX.com):

Rock Art lawyers have been in negotiations with Monster lawyers and late Wednesday afternoon the two sides came to an agreement. Rock Art gets to keep ‘The Vermonster’ name as long as it stays out of the energy drink business.

While this was what Rock Art’s president Matt Nadeau ostensibly offered to Hansen’s as a compromise a few weeks back, it can’t be the entire story. While this debate has largely been framed in terms of David vs. Goliath, big mega-corporate thug versus folksy small town brewer, the spark in the tinderbox stemmed not from an out-of-the-blue cease-and-desist letter from Hansen’s but from Rock Art’s application for a federal trademark on the Vermonster name. This point is near uniformly misunderstood in the debate and Hansen’s is just viewed as a bully with a ridiculously acute case of myopia. The difference between every other beer named Monster and Rock Art’s Vermonster is simply that the Nadeau’s sought a federal trademark for a consumable product whose name somewhat closely approximated one trademarked by Hansen’s. In an act of corporate responsibility, Hansen’s and its attorneys were obliged to consider whether to oppose the application. For right or wrong, the company felt it legally and strategically had to oppose the application and quietly hoped that Rock Art would simply back down from the application (while inevitably retaining the Vermonster name). A similar scenario may very well have played out with the Brooklyn Brewery’s Monster Ale, where it made a trademark application, only to later withdraw it. That beer remains on the market with the same name.

As Alan has noted (in his lawyer’s view), Hansen’s has a long history of vigorously defending its Monster trademark (and franchise) and that is understandable from a corporate law perspective. But Hansen’s is also a pragmatic corporation and the tide of public and consumer opinion has clearly turned against it with the viral Rock Art boycott and protest.

The question that remains unanswered is an important one. While Rock Art claims victory here and cites its old propagandist “Power to the People” line, the devil is in the details. Has Rock Art truly defeated Hansen’s in securing an agreement not to oppose its trademark application for Vermonster or has Hansen’s actually won what it simply wanted all along: protection for its core product and trademarks? If Rock Art has agreed to withdraw its trademark application and stay out of the energy drink game, then it’s hard to say what the small brewery has really won beyond a great deal of viral PR and public sympathy (the value of which certainly cannot be understated).

9 Responses

  1. Well stated Andy!

  2. Your observation that this whole sequence of events was triggered by Rock Art’s federal trademark registration application is right on the money. That is certainly how the Smuttynose logo came to Bass Ale’s attention back in 1995. (http://smuttynosetavern.blogspot.com/2009/10/trademark-disputes-vermonster-v-monster.html)

    The other day, I found myself chatting about this with an attorney who specializes in intellectual property law. She said these cases are quite common, but we rarely year about them. Instead, she said, they are usually resolved with a quiet behind-the-scenes negotiation resulting in a consent decree that both parties can live with. Now that technology allows conflicts like this to be aired out so easily in the public space, I wonder if quiet behind-the-scenes negotiations are even possible now, or if they are a quaint relic of the past. More worrisome, does all this simply provide grist for the PR mill? If so, is there ever any incentive for anyone to resolve a dispute quietly & civilly, outside of the public spotlight?

    P-

  3. did hansen’s pay you to write that shit?

  4. I see a few things:

    - it was Hansen’s decision alone that “Vermonster” was an equivalent of “Monster” for infringement purposes. What if had been another “-monster” suffixed name. Could Hair of the Dog not make an even bigger “Adamonster”? And it is really a “-moster” suffix or is it a “-ster” suffix given “Vermon-” predates Hansen’s existence by a couple hundred years. Did Hansen really have to defend against the claim? I am not sure.

    - I do not think it is fair that the counter-point offered by Hansen of “they started it” is accurate either… but nor is it right that Hansen created the conundrum by objecting. Each firm is working within the trademark law process and neither could see the implications of where each has so quickly found itself. This does not make the process evil. It is merely a hard case.

    - I agree that if both concessions are made (application withdrawal and no energy drinks) Rock Art has taken a step backwards, albeit with a huge boost in market awareness. But what if they refine their application somehow to accommodate and/or made finer business concessions? Heck even if they change the name to Dragonslayer (although Middle Ages makes that) have they not won the PR opportunity that lay before them? Making lemonade out of lemons is always a win.

    While I am a lawyer, I only play one north of the border so I would certainly like to know more about Federal trademark case law before I was convinced that there was the slightest shadow on the Monster trademark or, conversely, that Hansen was right. But even if they had to file, Hansen’s response including snarky comments on Facebook is what shot them in the foot. They got outplayed in the marketplace of ideas. So, even if they win in the agreement, that will be small beer… as it were.

  5. Hello everyone-

    @Peter I agree completely and your personal take on the situation from a few days back is one everyone interested in the topic should review.

    @andy No.

    @Alan As you know, it’s not necessarily that the two brands would completely befuddle consumers it’s that there was sufficient similarity to write a letter to the company and try to flex its muscle. As Peter noted, these things almost always go down quietly behind the scenes (as was likely the case with Brooklyn). I don’t blame Hansen’s for sending the letter nor trying to negotiate on this issue. The president’s comments, quoted from a private email and posted on Facebook, definitely didn’t help but it showed a human and frustrated side to the corporation’s dilemma. Both sides behaved as they had to and both caught some lumps in the process, in my opinion.

    By the way, I’m still waiting to hear some details of this proposed “win.”

    Cheers,

    Andy

  6. Social comments and analytics for this post…

    This post was mentioned on Twitter by SlovakBrewer: So Has Rock Art Actually Won Anything? http://tinyurl.com/ygc5k6s #Rockart #boycottmonster (via @BeerScribe)…

  7. Yes, the Brooklyn case is an excellent example of “we will never know” and it’s probably for the best.

    But what would have been the outcome of a business to business call from Hansen to Rock Art before the cease and desist letter was sent? If there is a moral to this story it may well be picking up the phone first is often not a bad idea.

  8. @Andy
    It looks like two things happened on the day of the “deal”. Neither of which resulted in the dropping of Rock Art’s trademark application.

    1) Rock Art changed attorneys

    2) The trademark application was amended to change its Classification to:

    “beer, namely craft-brewed beer, expressly excluding energy supplements, energy drinks, sports drinks, or energy sodas, whether in liquid or powdered form”

    All publicly available information:

    http://tmportal.uspto.gov/external/portal/tow?SRCH=Y&isSubmitted=true&details=&SELECT=US+Serial+No&TEXT=77765863#

    This seems to fit pretty well with what Matt has claimed he was proposing to Hansens all along. Namely that he would give up any right to enter the energy drink market with the Vermonster name if they would leave him alone with his beer.

    We may never know the exact details of the deal but I think we can piece it together sufficiently with a small amount of effort.

    Insofar as it appears Matt got what he wanted, I’d call this a win.

    • Hi Cedar-

      It does now appear that this is what happened and Matt confirmed as much to me. To be perfectly clear, Matt offered to stay out of energy drinks if Hansen’s agreed to stay away from beer and it doesn’t appear that this was the deal. But as you note, we will likely never know the full range of the agreement. The craft brewed beer limitation also seems designed to allow Hansen’s the right to enter the domestic beer market with a Monster-themed drink. All in all, it’s a bit difficult to say why this dragged out as long and as publicly as it did as the principals appeared to be in agreement over the basic terms as early as a week or more ago.

      Best,

      Andy

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