Barley Mowat 

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:

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 cialis brand name buy online, cialis 36 hour online, 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 cialis or levitra which is best 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 cialis 5 mg testimonials relinquish the Nitro TM in the US, without any official compensation.

This is the second 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 cialis saving coupon

The response to my article yesterday daylighting the whole “Cascadia” situation has been massive. This is an issue that really seems to have resonated with people all over–not just from Vancouver, but from all around the world. In addition to the dozens of comments on my blog here, there have been four threads on Reddit (with almost 200 comments), posts on beer-themed forums like cialis street price and a few discussions on non-beer themed sites here and there. In short, people on the Internet seem to care about this.

You know it’s serious when someone makes a cat graphic.

Also, Social Media lit up with 100+ retweets and damned near 400 Facebook likes. And yes, this means I now have hugely inflated ego and will be an insufferable ass from here on out. Deal with it.

As well, there were dozens of posts to Steamworks Facebook page. I say “were” because SW established a pretty good program of going in every hour or so and deleting them before finally giving up and disabling their wall entirely. That’s a quality move there, Steamworks.

Perhaps the most important bit of communication, though, was an email to me, authored by Mr. Gershkovitch, received last night titled “Notice of Defamation Action.” Don’t panic; Eli isn’t taking me to court. It’s a joke, and I mention it here because I liked it a lot. That title put me in a great mood. Attached was Steamwork’s reply. I’ve posted it here. Please read it, as the rest of this post won’t make much sense if you don’t.

So let’s talk about this letter. Despite the fact that this looks like something that was written in one go and shipped out quickly, it’s actually a very carefully considered and written piece of propaganda. The spin here is pretty massive, and if you read through it start to end you would be forgiven for forgetting what we were talking about in the first place.

I’m not going to dissect this letter bit by bit; I’ll leave that to the frothing hoards on the Internet, who are already way ahead of me on this one. Instead, I am going to sprinkle a few tidbits of info here to salt this discussion.

First, nice try Steamworks. This letter attempts to deflect a discussion about a trademark dispute into a David vs Goliath battle between the little guy and Molson. I’m not a fan of Molson by any stretch, and I’m even still a little hurt by GIB’s decision to sell out to them. However, that doesn’t mean I’m dumb enough to get distracted with a “but but Molson!” argument. It doesn’t seem like anyone else is either.

Second, the notion that every small brewery instantly rolled over in compliance because they’re just so nice (as opposed to Molson, who are meanies) simply does not jive with what I’ve learnt. Perhaps Steamworks doesn’t think that I might ACTUALLY TALK TO THE BREWERIES, but I have, and while, yes, some are acquiescing to the trademark, some are absolutely not because they think the TM is bullshit.

Third, an offer to license a trademark for $1 sure sounds swell, doesn’t it? Unfortunately, according to BarleyMowat.com’s in-house legal counsel* you can’t just willy nilly sell unrestricted use of your trademark. This is part of the “protect it or lose it” Eli mentioned. If you let people give you $1 to use your term however they want, you may lose that trademark because you’re not protecting it.

Similarly, believe it or not, this man is not protecting his “ladies.”

Nope, this licensing agreement will almost certainly come with some rather strong restrictions on how you can use the term, because it has to in order to preserve the trademark. And those restrictions have to be spelt out in a document, which needs to be read by a lawyer. The last time I checked, lawyers cost more than one dollar. So we’re right back where we started with small breweries being potentially unable to afford this whole thing, or simply being unwilling to bother with spending time and effort on something that is, afterall, not brewing beer.

Not to mention that a licensing agreement sets up Eli as some sort of King of Cascadia, judiciously bestowing or revoking these rights to those he sees fit. As funny as I think that image is, it’s not a reality that solves this mess. The Grinch Who Stole Cascadia becomes The Grinch Who Still Has Cascadia But Lets You Look At It Once In A While. Maybe. If You’re Nice.

I really wish this $1 licensing solution would work, as I’d happily just write a $56 cheque to Steamworks for all 56 other breweries in BC (including GIB) to be able to use the term “Cascadian” in a beer style without additional restriction forever, and we’d be done with this whole thing. Sadly, that’s not going to happen, as it is a virtually impossibility that Steamworks would ever agree to licensing terms this loose.

UPDATE: For a much more in-depth review of Canadian Trademark Law and how it applies specifically to this case, read this excellent post over at hoplog.

UPDATE 2: The saga continues in part there.

* Yes, we have in-house counsel. Bet you didn’t see that one coming, did you? She mostly spends her time repeatedly explaining “libel” to me, and occasionally informing me that I can not, in fact, sue a brewery for making bad beer. That part still doesn’t seem right to me, though.

Preface: Today I’m going to take a bit of a break from the never-ending stream of BC Seasonal Reviews to publish an actual article. Yes, what follows is a carefully researched BarleyMowat.com original. I even called people and conducted interviews for this one, although sadly I could not locate my fedora & “press” tag in time to wear it.

Pop quiz time: If I were to say “Cascadia” to you, what sort of beer would I be describing? Odds are that the vast majority of you just thought something like “Hop-forward” or “Cascadian Dark.” One of you, though, did not. One of you thought “Why, Steamworks’ Cascadia Cream Ale, of course!”

That one person is Mr. Eli Gershkovitch, or as he’s better known in beer circles, The Guy Who Owns Steamworks. Not only does Mr. Gerschkovitch feel that the word “Cascadia” is irrevocably associated with his (no longer brewed) Cascadia Cream Ale, but he feels this so strongly that he’s contacting everyone else using the term (or, more accurately, the somewhat-similar-but-not-actually-the-same term “Cascadian”).

Yup, Eli is using his trademark for the term Cascadia (Registration Number TMA669027), as applied to beer and beer-related wares, to send out a volley of calls warning of Cease & Desists to breweries that dared call their Cascadian Dark Ale a “Cascadian Dark Ale.”

Now, I don’t take issue with registering a trademark for your beers. In fact, I feel it’s a prudent step that breweries all-too-often forgo, on the basis of “everyone’s nice in the craft beer industry” or maybe more accurately “meh… seems like work.”

Much like cleaning the mash tun, though, it needs to be done. And please don’t make the interns do this one.

The reality of the matter is that not everyone in craft beer is nice, and that not all of the beer industry is craft at all. If another brewery decided tomorrow to produce a beer called “Singularity Russian Imperial Stout” there really isn’t much Driftwood could easily do about it, and almost every other craft brewery in BC is in a similar state.

So from that angle registering a trademark for your beer is a terribly good idea, however, the trick is around when you need to realize that your trademark is no longer worth fighting over.

Since 1999, when Eli first filed his trademark, the term “Cascadia” has developed another meaning entirely, and that’s the one that everyone out there parroted at the start of this article. Not only is that meaning completely incompatible with a Cream Ale (malt-forward, smooth body), but Cascadian-style ales aren’t even using the term protected in the trademark.

They’re using “CascadiaN,” not “Cascadia.” Combine that ‘N’ with the fact that the beers in question are not actually named Cascadia, but rather just described as such, and you’ve got a trademark that will be very hard to enforce in court.

So not only is Eli bullying fellow craft beers with an old trademark on a beer he no longer brews; he’s doing so without a solid argument. Why bother? Well, it’s all nice and feel-goody to be in the right with such things, but it’s another issue entirely to pay a lawyer to talk to another lawyer and convince them of just how right you are.

Sure, some of the more resource-rich breweries have consulted an IP lawyer and then held the phone away from their ears while said lawyer screamed “The fuck?!” but for most breweries, even that much lawyering is money they can ill afford to not spend on making beer.

And that’s the game plan: convince the little guys that even if they win, they’ll lose because of the finances required for that victory. I hate to admit it, but Eli’s on to something here. Small craft breweries honestly cannot afford to put up a fight, so they’ll sign off on whatever they need to in order to make this all “just go away.”

Much like prison, giving in without a fight is rarely a permanent solution.

The end result will be that breweries are afraid to use the proper descriptor for a Cascadian Dark Ale, and we wind up with a Christmas Dark Ale or some such, all just to keep things less complicated.

But why? Why is he doing this? I’ve had a few talks with different brewers over the past few weeks while researching this article, and while the words used to describe Eli have varied from slightly uncomplimentary to maternally disrespectful to downright physically impossible, none of them were “stupid.”

Eli didn’t just wake up one winter’s morning and decide “What the hell, I’m bored! I think today I’ll undertake a program designed to systematically and mortally offend the craft brewing industry in British Columbia for shits and giggles. Yes, this will require large amounts of my time and make me look like a complete and utter douchebag, but why not? Gotta be better than knitting!”

Please note: When contacted to answer “What Gives?” Steamworks elected to skip the chance to explain their point of view and replied with “No Comment.” What follows is therefore my best, educated guess as to the motivation behind all this drama.

Nope, he’s got a plan, and that plan has a lot to do with Section 36 of the Trade-marks Act. Section 36, for those of you that don’t spend your spare time reading Canadian IP Law, is the “use it or lose it” clause with regard to trademarks. Basically, if you have a trademark on something, you have to use it at least once every three years, or you risk easily losing it.

Coincidentally, the last time Steamworks appears to have brewed a beer with the Cascadia name is… winter 2010, and boy is that three-year anniversary coming up fast. In short, they’re getting ready to use it.

But what will this new beer be? Will they resurrect Cascadia Cream Ale, cialis private prescription cost and all? Doubtful, as it’s just not commercially viable to produce a sweet, malty beer and call it “Cascadia.” Consumers will buy it, open it, and say “What the hell is this?” before angrily demanding their money back. That’s what’s called “Bad PR” in the business.

I figure they’re brewing up a proper CDA, and Eli is using his bully tactics to clear the playing field prior to its release, rather than have his CDA compete with a handful of other similarly styled beers based on, you know, actual merit.

Sure, those other beers will be there, likely labeled as “Black IPA” or even “CDA” and yes, we’ll know they’re really Cascadian Dark Ales, but sadly, not everyone reads this blog. The average beer consumer will not equate the labels, and the playing field will wind up being just a little bit tilted in Steamworks’ favour.

What can we do about this? We’re the beer buying public, and obviously we won’t stand for acute asshattery of this nature, so what actions can we take? Sure, we could simply not buy his beer, but even if all 50 of my regular readers take part in such a boycott Steamworks likely wouldn’t even notice.

What we need to do is get the word out. Eli likes to see himself as a man of the people. He’s always willing to talk to the press and get his good name out there so that we can see that, deep down, he’s just like us. It doesn’t matter the topic, be it talking about cialis single dose, affordable Ferrari ownership, or even flying your private plane to Europe, he’s your guy for fluff pieces that make him look good (or at least that make him look like a less attractive, budget version of Richard Branson).

Eli is particularly sensitive to PR, is what I’m saying here, and if only there was some sort of media that’s driven by the people… some sort of “social media,” should such a thing exist? Oh yeah, I’m doing this:

Mr. Gershkovitch Twitter: @steamleader
Steamworks’ Twitter: @steamworksbeer
Steamworks on Facebook: cialis 36 hour online

Voice your displeasure; let them know what you think. In the meantime, Eli, if you’re still reading this, please take a moment away from that Cease & Desist addressed to me that you are no doubt drafting in the next window, and think this over.

I know you figure that you’re just defending a trademark that is rightfully yours, but you have to let this one go, buddy. You’re doing serious damage to both your own and Steamworks’ reputation in the craft beer industry, and the industry is small enough that this will come back to bite you in the ass. Perhaps you think Steamworks’ can stand on its own, but look around you. Look at your staff in the brewery and brewpub. See that look on their faces? They aren’t so sure. I cannot believe that someone there hasn’t said something to you about this. Listen to them.

Besides, how does this end? There are 11 breweries in Canada making several different Cascadian beers (lager, dark, pale, IPA). I’ll even list them for you: Alley Kat, Banff Avenue, Brewsters, Flying Monkeys, Granville Island, Howe Sound, Old Stone, Phillips, Red Truck, Spinnakers, Yukon. And then there are the importers: Alameda, Boundary Bay, Hopworks, and The Commons, and more every day. Are you going to take on all of them? What happens when one of them has deep enough pockets to fight back? What then?

Don’t turn your greatest assest–the community of craft brewers–into a liability. Work with them on this one. Have a round table and discuss what your concerns are; they’ll listen. Even now, this far along, they’re willing to work with you. Free “Cascadia” and it will be a massive PR boost for Steamworks. Brew a collaboration beer to celebrate the moment. I’d buy that.

Even if collaboration isn’t your style and you really just want to make a Steamworks CDA, let the trademark go, man. Trust me on this one. Put out your CDA and make it a good one. It’ll do just fine on its merits alone. Steamworks brews great beer, the best beer in BC by some measures. When people walk into a bottle shop and see your product, let them think about that, and not about why it’s the only Cascadian Dark Ale on the shelf.

Update: And in a move that surprises pretty much no one, Steamworks has deleted all posts mentioning this issue from their Facebook page.

Update 2: I have received a response from Eli in which he reveal plans to license Cascadia to craft breweries for ~$1 ; I will update with Eli’s full response and reaction tomorrow.

Update 3: Update here, with Steamworks’ response and my take on it.