Barley Mowat 

The Plot Thickens

with 35 comments

This is the third of three posts on the Cascadia trademark dispute that consumed BC Craft Beer in fall of 2012. To read the whole thing from the beginning click here

Time for a quick update on this whole mess. Since we last checked in with our heroes, a few intriguing developments have arisen. I’ll leave the big bombshells for the end of the article and instead start with the minor stuff.

First, hey you assholes posting obscenities to Steamworks’ Facebook, stop it. You’re doing nothing to shine a light on the issue and doing a whole lot to legitimize Steamworks’ new hobby of Facebook Post Deletion. Here’s a thought: instead of posting: “Wotif I traydmrk YOU! DICKFACES! LOLZ!” how about you learn to spell, and ask a legitimate question about how the proposed licensing will work? I kinda want to know. I bet Steamworks does, too.

Second, reconsider boycotting Steamworks. I know I might have said that word in my first article, but I regret it. We all make mistakes (hint hint Steamworks). The decisions we don’t like are being made by Eli Gershkovitch, the owner, and he doesn’t work in the brewpub, the brewery, or the Rogues. However, A lot of people who are definitely not Eli do and they don’t like this whole situation any more than we do. Spending a bit less at any of these places for the two weeks in which you’ll keep to the boycott won’t affect Eli in any noticeable manner, but it will affect the wait staff, the bartenders, the cooks and other folk right before Christmas. If you elect to continue your personal boycott after these considerations, that’s fine, but definitely do think about all the people involved who don’t have a trademark.

Third, we should rejoice! Steamworks has brought back Cascadia Cream Ale for us all to enjoy. Don’t believe me? Go to the brewpub website and see for yourself! It’s right there front and centre on the tap list… coincidentally where Nirvana Nut Brown was on Friday… and with the same recipe and commercial description as Nirvana Nut Brown. I guess it’s hard to remember how you used to describe a beer that you haven’t brewed in a few years, but I can help. Always helpful Chuck, that’s what people call me:

Every year in Vancouver there are a few days when the air is cool & crisp, the sun shines brightly, and the leaves show their vibrant colours — then it starts to rain incessantly. Anyway, our Cascadia Cream Ale is dedicated to the spirit of mountains, oceans, golden days and gentle mist. Caramel and honey malts lend this ale a mellow, grainy maltiness which is balanced by the subtle presence of English finishing hops. Cheers, our Cascadia Cream Ale will be sure to brighten up even the wettest West Coast day.

Sounds great; I have to admit, I kinda want one, but I’m not so sure I can actually get the beer described above. Go in to Steamworks today and order it. See what happens. Let’s just say it’s very hard to instantly brew up commercial quantities of beer, or really, even a tap handle that fits in with your new branding.

Fourth… this is the big one I hinted at. “Cascadia” isn’t the only trademark Eli has. Nope, he has lots more. Let’s skip right past the weird (“Alyeska”) and the local (“Ripple Rock”) and go straight to the contested: “Nitro.” Yes, it turns out that “Cascadia” isn’t the only generic beer term that Mr. Gershkovitch has registered. “Nitro” is an even more widely used term (to describe simply the type of gas a beer is pressurized with), but yet he has it, in both Canada and the US.

Unlike Cascadia, though, Steamworks appears to have never actually made a beer named “Nitro” (at least according to ratebeer.com, beeradvocate.com, untappd.com and yes, even steamworks.com). When pushed, Gershkovitch will most likely point to their use of a nitrogen tap for dispensing Heroica, but as much as selling some beer as “Cascadia Cream Ale” counts as a trading under a mark no matter what the beer actually is, not selling something as “Nitro” doesn’t count even if the beer in question really is nitro’d.



See? Doesn’t say “nitro” anywhere on it.

As upset as all you beer geeks are no doubt getting right now about this Nitro thing, you’re not as upset as Indian Peaks Brewing Company. Indian Peaks, aka Left Hand Brewing, have a bit of an issue with Eli’s US-registered Trademark for “Nitro,” and have challenged it. The US Patent and Trade Office kindly exposes all the documents that have been filed thus far, and man oh man soap operas have nothing on this. (Note: go to the PTO site here, then do a search for TMs with “Gershkovitch” as the term and “Owner Name” as the field, find Nitro, then click the TTAB button for all the gossip. I’d link directly, but that only seems to work with individual docs.)

Left Hand is making some rather… um… interesting statements as to the nature of Mr. Gershkovitch’s trademark. I beg of you to go read those filings yourself to get the full impact from the source, especially Left Hand’s claims and Mr. Gershkovitch’s response.

If you’ve noticed that I’m not cracking a joke here, it’s because this isn’t all that funny. Left Hand alleges that Mr. Gershkovitch straight-up lied his way into a trademark registration by misleading the US PTO into believing he was registering a mark on a product he traded in the US. In short, they claim that Steamworks has never sold a beer under the mark “Nitro” in the USA (despite the TM using US bottle labels as evidence of trade). Backing up that claim is a statement that there is no “Beer Certificate of Approval” for Steamworks in Washington State, and that Steamworks’ own website doesn’t mention a beer by that name. Gershkovitch, for his part, denies all these allegations (minus the one about his website) and asserts that he has traded under the “Nitro” mark continuously since November 2004.

In case you are wondering, the US PTO takes a dim view of things such as these alleged activities, even requiring an applicant to acknowledge, on pretty much any filing, that a false or misleading claim can land his or her ass in prison. Now I must stress, nay shout out, the word ALLEGED there. This proceeding is still underway, and will be for some time. Left Hand has proven jack shit. I could allege tomorrow that Santa Claus is an Immortal Zombie Nazi Alien who touched me in my bathing suit-only area and the initial exchange of legal documents would look pretty much the same as these. Only time (and lots of legal bills) will determine which version of events the US PTO finds to be more substantiated. Note how I didn’t say “win.” No one wins here.



Except the lawyers. They always win.

However, we can do our own homework: have you ever bought a “Steamworks Nitro” in the Pacific Northwest? Also, since Left Hand contends their beer is widely available in the PNW, how about a “Left Hand Milk Stout Nitro”? And I have to ask Steamworks: why did we have a big party celebrating the launch of your beers in bottles this fall, when you’ve been making bottle labels for Nitro continuously since 2004?

I also have to remind everyone else that, while the comments on this blog are often interesting, they are not evidence of anything, aside from the general decay of humanity’s grasp of grammar.

Lastly, before everyone who’s decided that they don’t like Steamworks goes rushing off to give praise to Left Hand… what exactly do you think LH is going to do next, assuming they win and Steamworks’ trademark is struck? Play nice and say “Oh, those staggering court costs? Nah, we’re good. We don’t mind that. We did it so Nitro could be free, man, freeeeee…” Screw that, you know fully as well as I do that they’re going to instantly turn around and register their own Nitro trademark, and we’ll effectively have swapped one Nitro trademark owner for another with a tighter claim to the mark.

Not much of a victory, is it?

Update: Steamworks has agreed to relinquish the Nitro TM in the US, without any official compensation.

Written by chuck

November 27th, 2012 at 11:46 am