At a friend’s dinner party a few months ago, I sampled a craft whiskey from his collection. I loved it, so I took a photo of the bottle and decided I would buy one for myself. Yet when I eventually scanned the shelves at the store, the distinctive label was nowhere to be found. After searching multiple stores with no luck, I eventually resorted to Googling the name.

That’s when I discovered: the brand I was looking for no longer existed.

With some additional research, I learned the distillery had received a cease and desist letter from a winery with a similar name, leading them to undergo a complete rebranding. The exact whiskey I was looking for was sitting on the shelf that entire time, but I never recognized it because it was in a completely different bottle with a new label.

This is a nightmare scenario for breweries and distilleries, who operate in a crowded consumer market where look and feel are essential parts of their product’s success. Thankfully, there are ways for brewers and distillers to minimize these intellectual property risks and take proactive steps to protect their brands.

In Alcohol Branding, Creativity is Key

With more than 9,900 breweries and 3,000 distilleries in the United States—each selling multiple products with distinctive labels and packaging—creating a genuinely unique brand can feel impossible.

Of course, from an IP standpoint, brands don’t even need to be identical to run into problems. Trademark infringement hinges on whether consumers are likely to be confused due to similarities in brand pronunciation, appearance, or meaning, so brewers and distillers need to make sure their packaging and brand names are sufficiently distinctive. Worse, because it’s not uncommon for manufacturers to have products in multiple channels (e.g., beer, spirits, wine, and even non-alcoholic beverages), the pool of potential similarities can be intimidatingly large.

One of the best ways to minimize risk? Creativity. “Neon Purple Kitty IPA” is far less likely to share a name with a competitor than “Summertime Ale,” especially when combined with unusual packaging. While this might mean less familiarity among consumers early on, it can ultimately lead to a brand that stands out on the shelf and avoids IP pitfalls.

The Importance of Early Vetting and Trademark Registration

A creative brand is still not a foolproof solution—and no company wants to invest in branding only to have to start over because of a cease and desist. That’s why it’s important for brewers and distillers to bring in trademark counsel early in the process, during the ideation phase, to vet the branding and consider trademark registration.

It often helps to present multiple options to trademark counsel when attempting to clear a brand, to avoid the need for rounds of back and forth before a safe mark is found. More recently, artificial intelligence has proven a useful tool for coming up with unique names when it can feel like so many good options are already taken.

Failing to be diligent when adopting a new brand can come back to haunt you. For example, consider a small Florida craft brewery that plans to only distribute its pilsner locally. Because there are no local competitors with a similar brand, they plan to remain in the Florida market, and the founder thinks trademark lawyers are too expensive, the brewery does not file a federal trademark application, which establishes nationwide rights. Instead, the company develops non-registered trademark rights by usage (a more limited form of protection) in the geographic area where the beer is sold.

After a few years, however, the brewery grows in popularity and reputation, and starts distributing up and down the East Coast—only to find out that an established brewery in New York has trademark rights in that area for a lager with a similar name. By not proactively vetting and registering its brand, the Florida brewery limited its potential for national expansion and will likely have to rebrand a best-selling product to offer it in new markets.

Failing to register the brand’s trademarks could also present problems during a potential acquisition. Given the core value of the brand’s name and appearance to consumers, potential buyers may not want to take a risk on a brand that isn’t protected.

Brand Protection Doesn’t Have to Break the Bank

Given how much failing to protect a brand can cost in rebranding and lost sales, brewers and distillers should understand that implementing a good trademark strategy does not require a huge budget. As Benjamin Franklin said, “an ounce of prevention is worth a pound of cure.” It is often much cheaper to avoid a trademark problem in the first place, rather than deal with its aftermath.

When legal budgets are limited, a targeted approach can often prove much better than ignoring one’s trademarks altogether. For example, it’s often smart to register the house mark (often the overarching brewery or distillery’s name) and the core product names, but it may not be a good use of limited resources to register the name and logo for every single product the company makes. Limited releases or seasonal beers, such as fall pumpkin ales or holiday gin, may not be worth the time and expense. The same could be true of associated merchandise like clothing or glassware, if sold in small quantities.

Monitor and Enforce Trademark Protections

Trademarks rights are a fence of protection around the brand—one that can be large or small, depending in part on the company’s willingness to enforce these rights. Often, a short cease and desist letter can encourage a new competitor to reconsider using a similar trademark before they have gained traction in the marketplace.

Trademark counsel should monitor for similar trademark applications that might be filed by competitors, giving their clients the opportunity to address the issue even before the competitor has launched the brand, at which point they may be even more willing to change course.

In sum, by taking a little extra time to select creative brands and vet them on the front end, brewers and distillers can avoid expensive IP pitfalls and lost brand recognition caused by a forced relabel.