Page 8 - Beverage MasterOct Nov 2020
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Legal & Marketing

               “reduced to practice,” meaning that either you       protection, discussed above.  Our founding fathers
               must have actually created your invention or have    recognized the valuable contribution made to soci-
               described it in sufficient detail that someone skilled   ety by authors and artists and, therefore, sought to
               in that area could follow your disclosure and cre-   encourage creative expression by providing protec-
               ate it themselves.  So, you can’t get a patent on a   tion for artistic works.  Examples of copyrightable
               time machine, because (at least for now) no one      materials include, books, paintings, sculptures,
               has figured out how to defy the time-space contin-   musical compositions, and photographs.
               uum.  In addition, to be patentable, ideas must be
               novel, meaning that no one else has ever disclosed     Unlike inventive ideas, which are only protected
               that idea before, and non-obvious, meaning that      when the government issues a patent to the inven-
               your idea cannot be an obvious variant on someone    tor, copyrights attach at the moment the artistic
               else’s invention.                                    work is “fixed” in a tangible medium.  So, for exam-
                                                                    ple, if a composer develops a new musical score
                 Given that humans have been making beer for        in her head it isn’t protected, but the moment she
               thousands of years, one might think that coming up   translates that tune to notes on a page or computer
               with something novel in the brewing process would    screen, it becomes protected by copyright.  In order
               be impossible.  Not so.  In preparation for this arti-  to enforce that copyright in court, however, it must
               cle, I ran a quick search of patents containing the   be registered with the U.S. Copyright Office.  While
               word “beer” in the title and got 491 hits.  Some     it is possible to wait until an infringer comes along
               recent examples include U.S. Patent No. 10,570,357   before filing for registration, doing so can severe-
               – “In-line detection of chemical compounds in        ly limit the damages that may be available to the
               beer,” U.S. Patent No. 10,550,358 – Method of pro-   author of the creative work.  So, early registration is
               ducing beer having a tailored flavor profile,”  and   the better course.
               U.S. Patent No. 10,400,200 – Filter arrangement
               with false bottom for beer-brewing system.”            In the beverage industry, copyright issues often
                                                                    crop up with regard to labels and advertising mate-
                 Improvements in any area of the alcoholic bev-     rials.  But often disputes arise relating to who owns
               erage industry may be patentable including, new      the artwork contained within a label, for example.
               types of bottles, cans, growlers, and kegs; new types  Generally, the author of a work owns the copyright.
               of closures and caps; improved methods of sepa-      But, if an employee of a brewery, acting within the
               rating hops from bines and leaves; new processing    scope of their employment, creates an image that
               equipment, improved testing procedures and equip-    the brewery owner incorporates into its labels, that
               ment, improved packaging, etc.  Essentially, any-    picture is considered a “work made for hire” and is
               thing that lowers costs between the farm and the     owned by the brewery.  Where disputes often arise,
               consumer, improves the quality of the beverage, or   however, is if the brewery hires an outside artist
               enhances the consumer experience is worth consid-    or a branding agency to develop the artwork.  In
               ering for patent protection.                         that case, the brewery should include language in
                                                                    its contract requiring assignment of all copyrights
                 One word of caution, however; time is of the       to the brewery for the created artistic works.  The
               essence.  The America Invents Act, effective March   same would apply for any artwork commissioned
               16, 2013, brought the U.S. in line with most other   for use inside the brewery tasting room or for mar-
               countries in being a “first to file” system, meaning   keting materials.
               if two people develop the same invention, the first
               to file for patent protection wins, regardless of who   Trademarks Protect “Source Identifiers”
               first came up with the idea.  Also, any public disclo-
               sure of your idea (such as at a trade show) starts a     People generally associate trademarks with
               1-year clock to file or you may lose your eligibility   the protection of a brand.  In fact, I have often
               for patent protection.                               described trademarks as an “insurance policy for
                                                                    your brand.”  But, in more technical terms, what a
                    Copyrights Protect Creative Works               trademark protects is a “source identifier.”  The pur-
                                                                    pose of trademark law is to protect consumers from
                 The authority for copyright protection stems from   being misled or mistaken as to the source of a prod-
               the same section of the U.S. Constitution as patent   uct.  So, for example, if a consumer sees a pair of

               6     October - November  2020     BEVERAGE MASTER

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