Everards to trademark Elixir Brewing Co out of existence

Posted by on Mar 4, 2014 in English Beer, Scottish Beer | 22 Comments

Groove2

As the brewing industry continues to expand enormously, one of the recent trends seems to be an increase in unsavoury jostling within the market, with regard to beer names and intellectual property. Trademark disputes, unquestionably, are on the rise. British beer is ballooning in scale at the moment – only surface tension is preventing it from going truly bonkers – and over the last few months a number of high-profile disputes have taken place that have caused ripples to appear. Belleville vs AbInBev, Redwell vs Red Bull, Weird Beard vs Camden Town.

To that list, we can now add Elixir vs Everards. The Leicestershire super-regional has threatened legal action against the Scottish nanobrewery Elixir Brew Co over their pending application to trademark their brewery name. In a series of correspondence, I am led to believe that Everards have stated their ownership of the Trade Mark ‘Elixir’, and have demanded the Livingston contract brewery not only withdraw their application, but cease using the name ‘Elixir’ immediately. As I understand it, they have further demanded the withdrawal of all Elixir products from sale, in every UK market, by this Friday.

This means, with Elixir Brew Co not having the money to pursue the matter further in the courts, within three days they will cease to exist.

The reason for this action is a 3.9% summer cask seasonal – Everards Elixir, which was released in the Spring of 2012. The Leicestershire brewery have, apparently, claimed extensive use of the name – although I could find no reference to the beer on their website. According to the Intellectual Property Office, representatives acting on behalf of Everards filed a Trade Mark application for the word ‘Elixir’ on the 8th of August 2012, as one of the 78 owned by the Leicestershire brewery. Filed under Class 32 (beer, lager, ale, porter, stout, bitter), the Trade Mark was filed three days before Elixir Brew Co began their debut social media campaign on the 11th of August.

Given there is so little crossover between the two breweries, despite being in the same industry, it seems some degree of compromise could be reached; after all, the beer review site RateBeer lists 50 different beers that contain the word ‘Elixir’ (a figure which does not include those brewed by Elixir Brew Co, nor Everards Elixir). Further, the E-word is, and was in the process of being trademarked as, the Livingston producers brewery name, as opposed to a name of one of their products. Speaking of which, the first one of those – Elixir Brew Co Benedictine Groove (pictured above) has been on sale for nearly eighteen months, unopposed, until now.

Having spoken to Elixir Brew Co founder Ben Bullen, he respects – and was always willing to respect – the fact that Everards had trademarked the word, despite him registering the name as a website url on the 29th of January 2012, several months before the Leicestershire brewery released their beer. Throughout this process of dispute, to date he has received no contact from anyone at Everards – despite continued calls and letters to attempt to begin some degree of dialogue. No correspondence has been returned, with the trademark representatives of Everards issuing several multi-point letters, evidently increasingly irate in their demands (the initial letter of objection he has apparently no proof of having ever received).

Ben has since retained the services of his own legal team – at no small cost, given he is currently working several jobs to merely collate enough money to cover his brewing overheads. I think he genuinely feels steamrollered by this – particularly that following his representatives’ letter to Everards, wishing to pursue a solution that might be mutually agreeable, the Leicestershire brewery responded with an unchanged set of conditions, and only a week to comply. This refusal of Everards to even discuss their opinions in person seems to go against the individual philosophy of Chairman Richard Everard OBE “I treat people in a friendly way and am always approachable.”

Trademark disputes, and ‘cease and desist’ letters, are nothing new in business – let alone the brewing business. But as the numbers of British breweries increase to such an extent, naming disputes, however they are handled, will only increase. What shouldn’t come into it, however, is the big incessantly crushing the small, particularly if the wronged party publicly states a set of beliefs, yet conduct their position in private, from behind a barricade of solicitors. For the sake of a seasonal beer (with seven reviews on RateBeer), one company looks set to put another out of business. I guess you can only “encourage others to progress”, so far.

EDIT 04/03/2014 9:00pm
As detailed in the comment by Everards below, at around 9pm they issued a statement on their Facebook page stating “We have decided that, as the name refers to the company rather than the beer, we will not pursue this any further.” Assuming Ben Bullen receives this in writing, it shows – to a quite astonishing degree – the power of social media and how it can now influence policy in major companies. These kind of disputes, though, will still continue – and will still occur more often – but maybe outcomes like this, and the others recently, may persuade some who are thinking of putting the clamps on in a trademark battle to seek a more personal approach first, to see if differences can be overcome.

22 Comments

  1. BenH
    March 4, 2014

    I was worried that this was going to be your news. Gutted that a better outcome couldn’t be reached for Elixir. I guess everyone now has until Friday to drink the shops dry of any remaining bottles.

  2. Craig
    March 4, 2014

    A group of locals have already Chipped in to help with some of what could be mounting Legal Cost(having had wind of this for about a week) . Normally Im a firm believer that a brewery should Stand or Fail on its own merits in the Market place. But i also firmly believe that this isnt the kind of Shit a new start up brewer should have to face. Im happy to Co-ordinate any more help @cagarvie on Twitter any of the Elixir drinkers out there want to give, or the Brewery details can be found here.
    http://www.ratebeer.com/brewers/elixir/15163/

  3. Joe
    March 4, 2014

    Hey Craig what’s the story with the whip round, I’d definitely contribute and I’m sure numerous others will too.

  4. Martin
    March 4, 2014

    What about a genuinely positive-intentioned visit to Leicester? Perhaps the lawyers have got hold of this, and a rational conversation with the apparently approachable MD would work…

  5. John
    March 4, 2014

    Does anyone know whether will be a representative of Everards at Leicester beer festival next week? If so, excellent opportunity to tell them what we think.

  6. Michael McDonald
    March 4, 2014

    This truly is a shame, especially as elixir is such a common word in the beverage industry it should never have been allowed to be trade marked in the first place.

    Before hiring a legal team, Ben should try going to a law school that does the LPC (legal practice course) and ask the tutors if he can put an email out for help from pupils. Law students need to differentiate themselves on their CVs and often do periods of unpaid work experience. This would be a great thing for them to talk about in interviews. I would recommend looking up The University of Law (which was set up as the Law Society’s training ground so it’s kosher in spite of it’s shanty name) and BPP law schools. No use talking to undergrads because most of them aren’t really interested anyway, but the post-grad lot are really quite into pro-bono like this.

  7. The50FTQueenie
    March 4, 2014

    As other have suggested – bomb their Twitter feed and Facebook pages – there’s nothing like bad PR for such a company. Spread the love and remind them we vote with our pockets.

  8. The Beer Nut
    March 4, 2014

    Dicks. Away after Heineken’s Asia-Pacific , then. I hear they’re calling one of their beers “Tiger”.

  9. Matt
    March 4, 2014

    Having been through similar I can fully sympathise about this. However, why has nobody mentioned the crime against nature that is beer with Buckfast in it!????!!

  10. The Beer Nut
    March 4, 2014

    In my case, Matt, because I found Benedictine Groove to be a really tasty and well-made beer.

  11. Yvan
    March 4, 2014

    It’s all a bit mental. It looks like Everards have been trademarking the silly names of their crap 1-off beers as a standard practice. They have trademarked “Whakatu” (Maori name for Nelson in NZ, also there’s a hop called Wakatu), “Sleigh Bell”, “Tight Head” (rugby term), “Wonderland”, “Sly Fox”, “Pitch Black”…

    They tried to trademark “Yakima” too – but that one was withdrawn.

    They don’t even produce these beers regularly, most aren’t even listed on their website.

    I don’t think anyone is going to mix up the sort of lowest-common-denominator swill that Everards brew with the product of a tiny Scottish brewery producing flavour-driven beers.

    Of course Everards have “Tiger” trademarked too… which is amusing for other reasons.

  12. BDRHC
    March 4, 2014

    @Craig what’s the deal with donating towards legal fees? Is there anything official set up or is it a case of get in touch with the guys?

  13. HWBREWER
    March 4, 2014

    I think the elixir guys are a bit naïve. Checking the IPO website before they got going would have prevented all this fuss. Surely the whole point of IP is to protect your trademarks whether in current use or not. The underdog story is irrelevant.

  14. BlackHaddock
    March 4, 2014

    Interesting read: I wonder why Everards haven’t taken on Singapore Tiger because of their branding and beer name. Which is something Ben at Elixir might like to consider mentioning when and if it goes to court.

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  15. craig
    March 4, 2014

    BDRHC Id sugest either mailing a cheque to them, or im collecting (SMALL) amounts via my bank account and passing it on to them(im sure BeerCast will vouch for me), Im Best contacted via twitter. But you could use my email account used to avoid spam, cgarviereg@gmail.com where i will check over next few days

  16. Sev
    March 4, 2014

    HWBREWER: Elixir Brew Co started before Everards trademarked Elixir.

  17. Yvan
    March 4, 2014

    @HWBREWER – check your facts, and RTFA. Elixir launched at the same time as Everards filed their trademark. Elixir registered their domain name before Everards filed their trademark. Elixir pre-checking that they were clear (which I have heard they did) wouldn’t have helped them. The timing is unfortunate. (The fact that Everards go and “protect” the silly little names of their silly seasonal and one-off beers is another issue.)

    If Elixir did one thing wrong – it is in failing to file the trademark themselves. I wonder how many breweries actually bother to do that? (A handful I checked haven’t… but I expect after this the trademark office might be seeing a small flurry of applications.)

  18. Everards Brewery
    March 4, 2014

    Here is our feedback, for those of you who have not seen it via social media:

    Trademarking is a standard business practice that we will continue to use, however the team at Everards have reflected on this particular case. We have decided that, as the name refers to the company rather than the beer, we will not pursue this any further. We are passionate about ale and support other brewers – this is demonstrated by our Project William work. We usually handle such issues directly between breweries but were keen to update immediately.

  19. Liberal Neil
    March 4, 2014

    Everards have now posted this on their Facebook page:

    “Thanks for your comments. Trademarking is a standard business practice that we will continue to use, however the team at Everards have reflected on this particular case. We have decided that, as the name refers to the company rather than the beer, we will not pursue this any further. We are passionate about ale and support other brewers – this is demonstrated by our Project William work. We usually handle such issues directly between breweries but were keen to update immediately.”

  20. mike
    March 4, 2014

    This was posted on Everands Facebook Page, just before 21:00 4th March…

    Everards Brewery
    Thanks for your comments. Trademarking is a standard business practice that we will continue to use, however the team at Everards have reflected on this particular case. We have decided that, as the name refers to the company rather than the beer, we will not pursue this any further. We are passionate about ale and support other brewers – this is demonstrated by our Project William work. We usually handle such issues directly between breweries but were keen to update immediately.

  21. Norrie
    March 4, 2014

    Thanks for posting this blog and for playing your part in alerting us all so that social media has been successful today. #Commonsense.

  22. Denzil Vallance
    March 5, 2014

    These letters get issued more or less automatically. the trigger is Elixir’s application for a TM. Regd TM holders will subsccribe to a service whereby a firm of IP specialists will monitor all TM applications and object to them as a matter of course often without further recourse to the TM holder itself.

    I applied to TM the beer name Dave in 2009 and used the advice offered by the patents office, or whatever it is, not to finalise the registration. In my case the name “Davys’s” is registered to a chain of off licenses in london. Not much room for confusion but that’s the point of the system. I was advised that they might object if I pursued the application and then I’d have to stop using the name Dave, so i thought, bugger it, I just won’t register it. We haven’t had any trouble with it.

    It seems to me that Elixir should definitely have been warned about this and if they were they must have known what would happen. it is a very unfair system but the act of registering a TM is basically acceptance of that and wanting it to be on your side.

    I’m very pleased that Everards have scrapped the cease and desist but the TM won’t be registerable. My advice to small brewers using names similar to registered TMs is carry on using them but don’t try to register them yourself.

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