Monday, May 12, 2014

Colorado Breweries Battle Over ELEVATION Trademark

The latest craft beer trademark dispute comes from Colorado, where Elevation Beer Company ("EBC") and Renegade Brewing Company are fighting over the ELEVATION trademark.


The dispute began in early April when EBC sent Renegade a cease and desist letter claiming that Renegade's use of the name "Elevation" in connection with beer--Renegade has a beer named "Elevation Triple IPA" (see: its rights in the ELEVATION mark. EBC noted in the letter that it has a trademark registration for the mark ELEVATION BEER COMPANY, and that it began using its mark prior to the date on which Renegade first started using the "Elevation" term.

Renegade Files Cancellation Action:
Renegade refused to accede to EBC's demands, and instead decided to go on the offensive. In late April, it filed an action before the Trademark Office to cancel EBC's registration. As grounds for cancellation, Renegade alleges that EBC committed fraud in the procurement of its trademark registration in two ways:

(1) By falsely declaring that "no other person...has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be cause confusion..."  In other words, Renegade claims that EBC falsely alleged that it was the exclusive user of the ELEVATION mark in connection with beer. As support for this allegation, Renegade cites various other breweries that were using the "Elevation" term in connection with beer prior to the filing date of EBC's application, including Elevation66 Brewing Company (ELEVATION66), Beach Chalet Brewery (ELEVATION ZERO ESB), Full Sail Brewing Company (FULL SAIL ELEVATION), and Breckenridge Brewery (BRECKENRIDGE ELEVATION). [NOTE: this will likely be an uphill battle. See: and]

(2) By falsely claiming that its mark was in use "in commerce" as of May 19, 2012. In order to obtain a federal trademark registration (with one limited exception), the applicant must affirm that the mark is in use "in commerce" in the US, i.e., in commerce which may lawfully be regulated by Congress. The traditional way to do so is to file a declaration that the mark is in use on goods that have been sold in inter-state commerce, along with a specimen.  [Though the Trademark Office and the Courts often take a lenient view of what qualifies as "commerce" under the Lanham Act. (e.g. intrastate use that directly affects a type of commerce that Congress may regulate. See Larry Harmon Pictures Corp. v. Williams Restaurant Corp., 929 F.2d 662 (Fed. Cir. 1991) (mark used to identify restaurant services rendered at a single-location restaurant serving interstate travelers is in “use in commerce”)]  Here Renegade alleges that EBS's declaration was false because EBC did not begin selling its beer across state lines until December 2013.

EBC Files Lawsuit:
EBC fired back at the end of last week by filing a trademark infringement lawsuit in Colorado federal court. It alleges that Renegade's use of the ELEVATION mark is infringing its trademark rights, and in the Complaint EBC states that actual consumer confusion has already occurred as a result of Renegade's use of the ELEVATION mark.  A copy of the complaint can be found here: