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

35 Responses to 'The Plot Thickens'

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  1. […] UPDATE 2: The saga continues in part there. […]

  2. This story just keeps getting more and more interesting. And one of the disturbing things about all this hoopla is that it is not about the actual beer in the bottles or kegs.
    And I do urge people following this trademark controversy, please do not sink to the level of name calling and attacking Eli on a personal level. It adds nothing to the whole volatile situation. And remember, Eli owns Steamworks, he does not pour the beer, brew the beer, deliver the beer…

    Paddy Treavor

    27 Nov 12 at 12:06

  3. I agree. I thought it would be a clear cut little brewery versus over-zealous legal type battle, but it’s much more complex than that.

    We’re bringing up some very important issues around around trademarks and beer as part of all this, and regardless of how valid we view the trademarks in question, we need to answer these questions.

    chuck

    27 Nov 12 at 12:08

  4. I do not like the word boycott. I do not boycott any product. I do, however, chose to not buy or consume products for various reasons. I may, at some point, change my mind about that product. Yes, this affects everyone who works for that company in lost sales. But, really, so what? There are others who WILL but their product. And, if the people who work for that company also feel strongly about the practices of their employer, they would figure out a way to go work for a company whose values they agree with. At this point, I will not but Steamworks beer. I may again someday, depending on if my feelings about that company change. I will, however, but beer from dozens of other B.C. craft breweries whose values and practices I agree with. That, in turn keeps many people employed. I’m sure most other craft beer people who have chosen not to support Steamworks, or any other brewery for any reason, are doing the same thing.

    unnamed brewery employee

    27 Nov 12 at 13:42

  5. I think I have seen the words “on Nitro” occasionally at just about every Brewpub I have visited. It is usually on the tap-list chalkboard for a limited time. I don’t recall seeing Nitro on any bottles for sale except now there is Left Hand Nitro stout. We shall see what happens in the future. From side by side tastings with and without nitrogen , I find the nitro bubbles dumb down the flavour slightly but add the soft creamy mouthfeel. Hardly worth it in my opinion but I am sure there are many fans of nitro.

    Back on topic…….. Whoopee ! More legal shit to cloud the enjoyment of fine ales !

    PS: Recently tried Old Rasputin on nitro at Pizza Pipeline in Bellingham ……. AWESOME !!!

    Darren McBratney

    27 Nov 12 at 13:53

  6. This story gets stranger every day. After reading your whole post, I am not sure who to root for. I would feel much better about the whole thing if I thought that somebody was “on our side”, but alas nobody does anything without a selfish reason in most cases.

    Sadly, this is just the start, as craft breweries turn into “real companies” with investors etc. they will start to care about owning words. Eli is the first because he has the money to do it.

    Chris Murray

    27 Nov 12 at 14:56

  7. This issue does not leave with a desire to continue to purchase Steamworks’ products. I was disappointed to see that the Rogue bars in Vancouver have nothing to do with the brewery in Oregon when I was visiting Vancouver this past weekend. The beers of Rogue were not even represented. It seems a fairly blatant rip-off of an established beer brand and though I’m sure copyright bases were covered I fail to see how one could deny that there was an inference of shared ownership. I’ll opt out of further Steamworks’ purchases where a choice s offered (pretty much everywhere). This move to copyright a word reeks of Trump and seems better suited to the world of “Corporate Beer” so I’ll leave Steamwork’s brews where I leave corporate brews, on the store shelf.

    Mark Jeffries

    27 Nov 12 at 19:05

  8. I’m sure lots of good people work for Monsanto, too, and it’ll be Christmas for them soon just like everyone else. Should I support them as well?

    This is BRUTAL Chuck. The company is rotten and evil starting right at the top and despite their weak attempt at implying otherwise they care NOTHING about craft beer. No matter how many good people they have working there I will never buy another Steamworks beer or step into Rogue again. Disgusting.

    The unfortunate reality is that good people in the trenches may suffer when a company’s leadership makes bad decisions. This shouldn’t guilt anyone into supporting an organization whose ethics and behaviour are not acceptable to them. In fact, the only way to send a message (and a much more effective one than posting crap on their Facebook wall, as you pointed out) is to hit them in the pocketbook. If you can name a company that changed their corporate ethos based on anything other than threat of financial loss I’d like to hear about it.

    Beyond just sending a message to Steamworks we also need to let every other brewer know that as consumers we do not want this kind of back-door legal bullying going on in an industry which for many of us (I’m thinking you are included here) is a passion, and part of our way of life. I don’t want to imagine my life without craft beer in it.

    Focus on making great beers, please! I give a good percentage of my yearly income to these companies and I would hate to see any portion of it going to lawyers battling over piddly little things like this rather than into making better beer, or rewarding the actual people who produce the stuff I love!

    And he has the balls to call out Molson and GI as the big, evil corporations? Shame on you, Eli.

    fuckyoueli

    27 Nov 12 at 19:06

  9. We saw Eric from Left Hand at GABF this year in early October. The first topic of our discussion he brought up was Eli’s Cascadia trademark. I remember him being very angry. I was also very surprised he even knew about it.
    This is just an assumption based on our conversation but I think Left Hand saw an opportunity to stick it to Eli and is challenging him simply just to prove a point. Time will tell if I’m wrong but I don’t believe Eric has any intentions of trademarking Nitro.

    Oel

    27 Nov 12 at 19:14

  10. Wow.. impressive job Sherlock. You uncovered the next Watergate. A lawyer and business man trademarks names related to his business. I’ll standby for your Pulitzer.

    This story has gone to your head and its unbecoming.

    Hoopyhopper

    27 Nov 12 at 19:51

  11. Province blog post about this.. A lot more informative than the fluff from Randy Shore in the Sun.

    http://blogs.theprovince.com/2012/11/27/trademark-battle-brewing-over-cascadian-dark-ale/

    Only interesting thing from the Sun was that Eli spent $15K to get a trademark. Seems a bit off from someone who knows nothing about getting a TM :)

    Mark

    27 Nov 12 at 20:11

  12. ‘Ripple Rock’ was one of the names short listed for the red ale we release this week called Siren. Dodged a bullet there. Not sure I quite understand how you can trademark a name you’ve never used… Will have to do a lot more than a cursory google search the next time we release a beer.

    Dean McLeod

    27 Nov 12 at 21:31

  13. @Dean – Do a CIPO search for any mark you’re considering:

    http://www.cipo.ic.gc.ca/app/opic-cipo/trdmrks/srch/bscSrch.do?lang=eng

    It only takes a minute or two, and can save you a lot of headaches and reprinted labels.

    Note that someone doesn’t have to first produce a product to TM it, just have the intent to do so. When in doubt, get a lawyer’s advice. Or, minimally, don’t trust some guy with a website as his sole qualification :)

    chuck

    27 Nov 12 at 21:35

  14. Thanks for the link Chuck.

    Dean

    27 Nov 12 at 21:50

  15. Eli’s response comes up as “Image Not Available.” Did you post the wrong link, or did Eli have it removed somehow?

    Copyleft

    27 Nov 12 at 21:51

  16. @copyleft – All the files are publicly available and maintained via the US PTO website. They have a tricky server-side session management scheme, so I’d advise doing the search first to create a session then trying the direct links.

    The links sometimes work without doing this and sometimes do. If you find one that consistently does not work, let me know (it works for me, though).

    chuck

    27 Nov 12 at 21:54

  17. It still doesn’t work for me, even by doing a fresh search and clicking on the document called “ANSWER.”

    By the way, I’m not sure if anyone else has thought of this, but Eli’s got it out for GIB right now and takes issue with their use of CDA. But the guy who was in charge of GIB when they released their CDA and who presumably ok’d the name is now in charge of Steamworks. Isn’t there a bit of a conflict of interest in there somewhere?

    Copyleft

    27 Nov 12 at 22:04

  18. Eli trademarked “Ripple Rock” for the root beer at Steamworks.

    Nut Brown Inspector

    28 Nov 12 at 00:00

  19. The owner of Steamworks seems like the exact guy I don’t want in the industry. I understand the brewery industry is the same as any, but cases like these have largely been in the quiet minority. One thing that really bothers me though is that the term of a process, you nitro a beer, can be trademarked. What about Guinness, Youngs, or future breweries who bottle or can their nitro beers? Are they supposed to omit that from the bottle or can? This is only going to hurt the industry. I can’t wait for IPA to be trademarked.

    Mark

    28 Nov 12 at 07:45

  20. @Copyleft – The system is finicky. I was booted for a few hours while pulling all the links together for this post. If this AM that link still doesn’t work for you, please contact me and I’ll get you a pdf of the file.

    Re: conflict of interest: I can’t say, I’m not a lawyer and don’t even play one on TV. I’d hope each case would be decided by its merits alone, but who knows?

    @Oel – I dunno. If they don’t TM Nitro, then it’s just open for the next yahoo to do so. As well, if they felt it was purely descriptive they could bolster their case with that argument, instead they’re very much coming from the “but WE trade under this mark and he doesn’t!” angle.

    chuck

    28 Nov 12 at 08:03

  21. The old page is still up here if you want a screenshot of the Nirvana Nut Brown tap:

    http://steamworks.burstcreativegroup.com/brew-pub

    Eli has a Canadian/American trademark on “Coal Porter” but the Atlantic Brewing Company in Maine has a Coal Porter too:

    http://www.atlanticbrewing.com/our-beers

    Mark

    28 Nov 12 at 10:10

  22. And guess what is and what isn’t on tap at the pub:

    Steamworks Brewpub‏@SteamworksPub

    On tap now!! Wheat Ale, Lions Gate Lager, Oatmeal Stout, Copper Roof Ale, Pilsner, Pale Ale, Empress IPA, & our holiday Blitzen!!
    4:36 PM – 27 Nov 12

    Mark

    28 Nov 12 at 10:22

  23. Eli likes his trademarks …

    ‘After a little more than three months in business, SteamWorks Coffee House has changed its name to SteamPunk Cafe and Coffee House.

    In early November, owner Kevin Wright received a call from Steamworks Brewery owner Eli Gershkovitch. It turns out that Gershkovitch had trademarked the name Steamworks and that Wright could not use it.’

    http://www2.canada.com/albernivalleytimes/news/story.html?id=035b96aa-ed23-4ad1-84bb-57a6bde5f16d

    MarkyMark

    29 Nov 12 at 02:15

  24. The interesting thing is he had a trademark on Steamwroks that applies to coffee shops and cafes. Eli is a smart cookie!

    Mark

    29 Nov 12 at 07:33

  25. Another recent classy move by Eli:

    Up until a few months ago Steamworks was being brewed R&B Brewing. Well, at some point R&B hired someone who used to work for Eli and left on less-than-favourable terms. Eli called up Barry at R&B and demanded the new employee be fired by the end of the day or he would cancel their brewing contract immediately. R&B are great people, but they really needed that contract so they let the employee go. About a month later Steamworks changed over to Dead Frog for their production anyway because they were cheaper and could produce more volume, although quality would unquestionably be lower (so much for the whole “craft” beer thing).

    So basically Eli fucked over the former employee over some weird vendetta, AND he fucked over R&B. So even though you don’t approve of name calling, Chuck, I say “FUCK YOU, ELI!”

    My boycott remains in effect indefinitely, and I will urge my friends to do likewise.

    fuckyoueli

    29 Nov 12 at 11:00

  26. @fuckyoueli – Whoa. That’s a story I did not know, as are quite a few stories that people have privately emailed me or told me in person. I still don’t like name calling, but I’m not going to insist that everyone else play by my rules. Personally, I think that a person who behaves as your story describes doesn’t need to be called names to diminish their character–they’re way ahead of you simply by their actions.

    chuck

    29 Nov 12 at 11:20

  27. It may help to recall some related local history:

    http://bcbrews.wordpress.com/2009/02/02/tree-goes-hop-head-to-hop-head-with-green-flash/

    Of course, what makes this case more egregious is that it can have a more far-reaching negative effect — threatening the adoption of CDA as a beer style (the campaign isn’t over!) and “nitro” as a descriptor of a common beer serving technique. This is not kosher for a business that is supposedly part of the craft beer community.

    BCbrews

    29 Nov 12 at 15:38

  28. The more I hear about this the more I really get a bad taste in my mouth. I think I will be avoiding steamworks from now on. Sorry Dead Frog.

    mikescraftbeer

    29 Nov 12 at 16:46

  29. @fuckyoueli Tony and Timmy are excellent brewers who work for Dead Frog and even though they inherited recipes, are bringing much needed quality and respect for this brewery (see their new Fearless IPA)

    But i digress! If Steamworks licence the use of Cascadia, even for a dollar – this reinforces their trademark claim and I’m sure the signed agreement would state that very clearly.

    Once they have reinforced the trademark with licensing then they would be free to charge what they like and probably stop breweries from using it.
    Breweries should NOT pay the dollar fee, it will only help Steamworks

  30. @BeerWrangler I’ve known Tony since the pre-Dix days. He’s a very capable brewer. Timmy I’m not as familiar with, admittedly, but he seems solid as well. HOWEVER, decent brewers does not equal high quality brewery, just like a good chef does not equal great restaurant (Ensemble Tap anyone?)

    Dead Frog puts out a lower quality product than R&B, plain and simple. The measure of a brewery’s quality is indicative of the entire organization’s commitment to said quality, not the capability of one or two employees. I can tell you first hand stories of just how low the quality bar actually is over there in Aldergrove, regardless of who is manning the kettle.

    Case in point: have you tasted the so-called best beer in BC lately? The Steamworks Pilsner coming out of Dead Frog has been absolutely dreadful. And don’t think I’m just some hater that’s got it out it for Eli, or Steamworks, or Dead Frog. I have nothing personal against any of them (well, I really dislike Eli’s approach to business and his obvious disdain for the industry, but he’s never done anything to me). I’ve given that beer, along with their pale ale, numerous tastes. In my opinion it’s actually getting worse, not better.

    This discussion isn’t about the beer though. Whether you like the beer or hate it, the issue at hand is how they are entering the craft beer market and immediately fucking with other fantastic breweries who just can’t afford to fight back! Then they have the gall to call out GIB as not a “true craft brewery”. How much do you care about your own product when not only do you sub out its production, but you sub it out to one of the worst breweries in the province?

    Let the beers compete on the shelves and taps! The people will choose what they want to drink. Keep the back door legal bullshit out of the industry!

    fuckyoueli

    29 Nov 12 at 19:51

  31. @BeerWrangler – Ding ding ding! We have a winner. Licensing it out to build the claim and then jacking the price for a quick easy profit is my new best theory for the game plan here. I hate to say it, but I kinda admire the emotionless laser focus on profit at the expense of all other considerations. You just don’t see that any more.

    chuck

    29 Nov 12 at 21:13

  32. […] up another fuss over Cascadia.  This topic has already been well covered by three comprehensive posts over at Barley Mowat and I’m not intending a rehash (side note: I talked to Chuck last week […]

  33. FYI: Some new documents on their TM for Nitro was posted:

    01/24/2013
    MOTION TO AMEND ANSWER/AMENDED ANSWER OR COUNTERCLAIM

    01/15/2013
    DISCOVERY CONFERENCE ORDER; TRIAL DATES RESET

    Mark

    29 Jan 13 at 22:21

  34. […] Well, I promised to keep you up to date on Steamworks’ Owner Eli Gershkovitch’s other trademark dispute–the one against US-based Left Hand Brewing over the far too generic term “Nitro.” If none of this makes any sense to you, the words “Eli” and “trademark” entered the craft beer lexicon last fall when it was revealed that Mr Gershkovitch held (and was defending) a trademark on the term “Cascadia.” I have a summary of how things went down here. Or, if you want, just skip to Part 3 where I talk about Nitro here. […]

  35. […] “The Plot Thickens” – Article by BarleyMowat.com […]

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