Wanna hear me talk about stuff? I didn’t think so. In any event, if you feel like hearing my opinion on Freetail, beer trading, Texas laws, the craft beer industry and dinosaurs, you can listen here:
This arrived today, unsolicited, from one of my merch Vendors. Thanks Brewery Branding!
For whatever reason, the people at Groupon think that repeatedly sending a different person to call/email me will eventually result in me submitting to their corrosive program that hurts small businesses. I’m tired of responding politely, so here was my latest exchange with the rep assigned to me.
And yes, before you point it out, I’m quite aware of how childish I am.
Click photos to enlarge.
To Mitch’s credit, he tried to stoop to my ridiculously low level and respond with a graph of his own:
Unfortunately I have no clue what this graph is trying to say, or if it says anything at all. I won’t bother responding, because I’m out of graphs in which I can convey “no thank you.”
I wanted to say one last thing about Dinosaurs and Lawyers, since messages keep pouring in from numerous channels about “The Letter”. I posted this to BeerAdvocate.com, and hopefully helps explain things a bit.
Warning: this response is likely to be far less entertaining than anything else you could possibly be doing.
First of all, I didn’t think the letter would get shared the way it did. I posted it for kicks on my personal twitter where I don’t have that many followers, because I’m not really that important and/or cool. My friends would agree.
I don’t have anything against Steelhead Brewery, the lawyer in question, or our mail woman who delivered the C&D letter. Actually, I don’t really like our mail woman… she refuses to deliver the mail on Mondays and she always sticks packages into a box where the key doesn’t work, delaying the delivery of said package until I can flag her down to open it for me. But I digress…
Unfortunately, I have way more familiarity with Intellectual Property law than I ever cared for. I’ve been on the receiving end of C&Ds (even one from a brewery that to my knowledge STILL has never produced a single beer), none of which I’ve ever fought because I’ve never cared enough to. I’ve also been on the sending end of one C&D for the brand we are most known for, which we issued AFTER a number of conversations with the brewery in question and before they had ever produced a single drop of the potentially infringing beer.
An important characteristic of trademark law is that trademarks are very costly to protect because IP lawyers are really proud of themselves and charge commensurately. I have one of the nation’s best IP firms representing me, but I hope to never write them another check. My IP lawyer (who isn’t the one who advised me to draw the dinosaur, nor was he ever involved in this situation) is a nice guy, but I’m no Rockefeller or even Jay-Z… I need to save my pennies to make more beer. So even if you “win” a lawsuit, it could cost you tens of thousands of dollars. As small businesses, can we even really call this winning? The money I spent on my IP lawyer the one time we got involved in issuing and C&D and negotiating the actual cessation of the use could and should have been spent on something much more productive in the brewery.
A few clarifications, just because I’m anal like that…
1) Freetail has never made a beer called Hopasaurus Rex. We have a page for Hopasaurus Rex on our webpage, but is it meant to describe a process we occasionally used on IPAs (and actually, we’ve used it on non-IPAs too). Most people don’t know much about Hopasaurus Rex because we haven’t done it a lot and even when we have we haven’t always pointed out we’re doing it. Here is the official description for what we formerly called “Hopasaurus Rex”:
“Once thought to be extinct, the Hopasaurus Rex is occasionally sighted on the outskirts of San Antonio, gobbling up IPAs as they make their way to the taps and instead sending forth a transformed version of hop gloriousness. His belly full of whole leaf northwestern hops, this beast’s mark is often described with terms like pine, citrus and grapefruit. The Hopasaurus does not discriminate in his IPA diet, so long as the IBUs quench his thirst.”
What all that mumbo jumbo really says is: Hopasaurus Rex is an inline “hop filter” of sorts. We stick a 5 gallon corny keg of whole leaf hops between the serving tank and the tap, for some extra hop character. So really Sam and Dogfish Head owe us a C&D letter too. Sam, if you are reading this, I will buy you some beers and let you slug me 10 times in the arm for “borrowing” the idea of Randall.
2) I can’t believe this thread has gone on this long without someone making fun of our webpage. That was a gimme. Anyway, we have a new one coming soon. [Shameless plug!]
3) I’m fortunate to have one of the coolest jobs I can think of – running a brewery. Someone previously mentioned this was kind of childish, and I agree. I’m kind of childish & I like to joke around. I’m lucky that being childish isn’t a (complete) detriment to my job, but it frustrates the hell out of our local Brewers News writer because he can’t tell if my updates are serious or not.
4) [Soapbox Alert] I think a lot of our country’s problems could be solved if people (especially elected officials) would sit down over a beer and interact more with one another instead of immediately resorting to legal options. In an ideal world, disputes like this should be handled as follows:
Brewery A: “Hey, you have a beer the same name as our trademarked beer. Can you stop”
Brewery B: “Sure, sorry about that.”
Brewery A: “Cool, can we get this in writing just so we have a paper trail”
Brewery B: “Sure amigo, let’s meet up at the next GABF or CBC and share a beer”
5) As we approach (and maybe have passed by now) 2,000 operating breweries in the United States, these disputes are inevitable. Especially since there is a finite number of lame hop puns to be used. Sometimes I get sad when I don’t think of them first, but I move on.
I was going to keep this list going, but I’m out of stuff to say. Thanks to everyone in this thread for supporting craft beer!
Hugs not drugs & beers instead of tears,
PS: Texas rules.
I appreciate everyone’s words of support – but I want to stress that “The Letter” was just me having a little fun. Again, I really do have nothing against the other brewery and I hope it continues to get support from visitors and its local community.
Support your local brewery, no matter where it is!
Okay, so I don’t have a whole lot to say on this topic, but I did want to address it.
Yes, I received a Cease and Desist (C&D) letter from an attorney representing another brewery over the name HOPASAURUS REX. Yes, I responded to that C&D like a child. Yes, I also had a lot of fun in acting like a child. Yes, I did include a drawing of a dinosaur waiving white flags in his little T-Rex arms. Yes, I had a lot of fun doing it.
But I didn’t do it with the intention of “going viral” or getting publicity for my brewery. I did it because that’s the kind of thing I do. I have no ill will towards the other brewery or the lawyer.
At the end of the day, I hope the main message are:
1) A lot can be solved if we just communicate with one another directly instead of always resorting to lawyers as the first option and
2) Please continue to support your local craft brewery, wherever you are!
That is all!
PS: A lot of you are asking about T-Rex with White Flags t-shirts… hmmmm… maybe. Lemme think about it.
What the hell is going on with this bottling line at Freetail? Back on December 13, this photo was posted to our Facebook, announcing the physical arrival of our bottling line.
And yet… no Freetail bottles grace the shelves of our new merchandiser. Instead you can find bottles from great craft breweries from around the country, but that wasn’t really the point, was it?
The biggest delay we are facing, is the arrival of a commercial grade air compressor that is required for the operation of the bottling line. We ordered one back on December 14 that was supposed to have a 7 day turnaround time, yet we haven’t seen it yet and the vendor we ordered it from is unable to either a) contact the manufacturer to get an update (well, they’ve been sending messages to the manufacturer, but haven’t heard anything back) or b) cancel the order… so we are in hurry up and wait mode. If you happen to work for Quincy Air Compressor… hurry up and make our unit!
The good news is that I have a shipment of bottles arriving today that I’ll at least get to label in advance of our first bottling. Those of you who are fans of the crooked, bubbly nature of our hand-applied labels will be disappointed to learn we also have a new labeller that will result in nice, straight, evenly applied, professional looking labels going forward.
I’ll definitely keep everyone updated on the status of bottles and the first release, both on my personal twitter (@beermonkey) in addition to the Freetail twitter (@freetailbrewing) and Facebook feeds. The good news is that the first release will include a few bottles. Look for Three: Anniversary Ale, Old Bat Rastard, PirateTail V and one of our IPAs all hitting the shelves at the same time.
Until next time.
2011 is in the books, and it was an eventful one for the beer industry as the craft segment continues to explode and the traditional powerhouses continue to cling to market share. My list of the year’s top stories looks something like this, in no particular order:
- A tidal wave of Breweries-in-Planning. According to the Brewers Association, the number of breweries in planning stages was 855 as of 11/30/11 – and that’s just the ones they know about! More on this in my 2012 Predictions.
- Rubber Boots More Common at the Capitol. A number of high profile legislative efforts went down in 2011, including a successful effort in Minnesota led by Surly Brewing Co. to allow production breweries to sell beer directly to consumers at the premise of their breweries and unsuccessful efforts in Texas to allow similar changes for production breweries and to allow brewpubs to sell to distributors. Aside from the issues the individual bills try to address, the big story here is a growing trend of states having to adapt to the changing marketplace and the emergence of craft beer. Laws drafted almost 80 years ago are finding themselves inadequate to handle the modern beer industry, and the states that have already realized this have been able to foster economic growth leaving slow adopters in the dust.
- Craft Continues to Boom. In a sign of Craft Beer’s continued emergence, mixed with a sign that the main stream doesn’t quite fully get it yet, The Wall Street Journal Reported Craft Beer sales were up 16.4% in 2011 compared to a 2% drop in sales for beer sales as a whole. As for the sign the main stream doesn’t fully get it yet: in the same article, the WSJ captioned a photo as being from “A Sierra Nevada Pale Ale brewery”. (Facepalm)
- The Wall Street Journal Might Not Get It, but MillerCoors Does. For years, “faux” craft brands like Blue Moon and ShockTop have been the ire of hardcore beer aficionados who have actively revolted against Big Beer and its influence over the industry. But MillerCoors deserves credit for their approach to the segment, and the seeming autonomy given to Tenth and Blake, it’s craft and specialty unit. There are increasing signs, and acceptance from some craft beer heavyweights, that Tenth and Blake is poised to be a major player (more in my 2012 predictions).
- And Maybe Anheuser-Busch InBev gets it too? The InBev spending spree never stops, with the global giant purchasing Chicago’s Goose Island for a reported $39 million. Goose Island insiders say the ownership change won’t impact their approach to beer, but one immediate impact is the strategy by InBev to begin trademarking Area Codes around the United States in what would appear an effort to mimic the success of Goose Island’s 312 Urban Wheat.
- Authentic Beverages Puts a Crack in Texas’ Dam. As reported here, A Federal Judge found certain aspects of the Texas Alcoholic Beverage Code to be violations of the 1st Amendment, and the state does not plan to appeal. (I tried to avoid linking to myself in this round-up, but with all due respect to journalists, I think my write up is most encompassing of the realities in this case – for other sources, I recommend a quick Google search of Authentic Beverages, Jester King, and TABC)
Without question, there are a lot of other huge stories that I’m not addressing as was a busy year. There was some major projects for me personally as well: I was involved in an (unsuccessful) legislative effort, (unsuccessfully) attempted to open another brewery 200 miles from where I live, was a witness on a high profile industry lawsuit, began installing a bottling line at our existing brewery. Fit that in between teaching at the University, serving on two Brewers Association committees, giving a TEDx talk, and the whole “running a business” thing. Despite two major unsuccessful ventures, I consider 2011 to have been a smashing success and I’m looking forward to 2012.
Speaking of which, here are my Beer Industry Predictions for 2012:
- Craft Beer Will Simultaneously Become More National and More Local. The continued growth of Craft Beer brings with it some growing pains. We will see an increasing number of breweries “pulling back” from markets on the outer reaches of their distribution territory in order to keep up with demand closer to home. Some of this newly available shelf space will be filled by an increased proliferation of the “big” craft brands like Sierra Nevada, New Belgium, etc. and imports. Simultaneously, some of the shelf space will be filled by local brands, either new breweries or existing ones finding increased access to market.
- Setbacks for Start-ups. Despite the optimism of some of my peers in the industry, I share the cautious skepticism of others who wonder if the market can support what amounts to a 50% increase in the number of breweries in America (if all the “in planning” came fruition). My personal feeling based on anecdotal evidence as someone who has given multiple Start-up talks at national conventions & gets a lot of inquires for advice is that the growth of the industry has once again drawn the attention of a lot of people who really shouldn’t get into the industry. I’m not suggesting there are or should be “rules” on who can start a brewery; but I do have a (completely unsupported by anything like empirical evidence) feeling that start-ups backed by people who see a breweries as nothing more than investments for the potential for high-return fail at a significantly higher rate than those of us who got into this business for the love of the industry. That isn’t to say that every start-up doesn’t have someone who loves the industry (though I know that isn’t the case), but there is a certain corrosive element that having the wrong people involved in a start-up can bring and it is becoming increasingly common. I think we’ll see some quick, and even high-profile with shiny new equipment, failures in the coming years.
- Natural Selection. I also predict an increased number of closures of established breweries in 2012 as competition becomes more intense. There are a lot of newbies (5 years old or less) making incredible beer pushing established breweries to up their game, or fade away into history. The result will be excellence on a more consistent basis from craft breweries. You’re favorite brands will either continue to get better, or they’ll just go away.
- A Glut of Equipment. The good news about my last prediction, is that if you are a start-up there should be a glut of equipment coming available as breweries fail. Some free start-up advice from yours truly: be a contrarian! If there is no used equipment available, it’s a bad time to start a brewery, because it means everyone else is starting breweries.
- Despite These Factors, Craft Continues to Blow Up. Based on the Wall Street Journal growth numbers quoted above, Craft Beer should enter 2012 with a market share around 5.1% by volume and 8.0% by dollars. I predict another year of high-teens growth, maybe even 20% as craft beer becomes increasingly mainstream, and craft will enter 2013 with dollar share of 10%.
- Distributors Start to Play Nice. In many states, there has long been an uneasy relationship between brewers and distributors, especially in the legislative arena where distributors feel empowering breweries puts their place in the 3-tier system at risk. I see 2012 as the year distributors in lagging states “see the light” and drop their opposition to legislative changes that would help small brands. Operationally, I predict increased pressure from InBev on its distributors to focus on their brands and wouldn’t discount the possibility of threats on those distributors if they don’t focus on InBev’s portfolio. Even so, I see craft beer & brand promiscuity accounting for an increasing percentage of wholesalers’ portfolios.
- Texas Will Change in 2013, and We’ll Know About it in 2012. Before the end of the year, craft brewers, distributors, retailers, consumers & lawmakers will have agreed upon legislation that allows production brewers to sell directly to consumers on the brewery premise and for brewpubs to sell their beer to distributors for resale. Texas will be free from the shackles of the past… which leads me to:
- BONUS 2013 PREDICTION: Texas experiences a craft beer Renaissance. Some of you may already think we are there, with all the new brewers popping up around the state… but by the end of 2013, you’ll look back and realize that we hadn’t seen anything yet.
And now for the lighter side. As I alluded to previously, Judge Sparks’ judgement is full of all kinds of funny lines. If this whole judging thing ever gets old to him, he’s got a career in comedy.
Judge Sparks wastes no time getting into the humor (and a little jab), and offers this in his background on the case:
The practice of law is often dry, and it is the rare case that presents an issue of genuine interest to the public. This is just such a case, however. Dealing as it does with constitutional challenges to the Texas Alcoholic Beverage Code, it is anything but “dry”and this Court wouldnever be so foolish as to question the sincerity of Texans’ interest in beer.
Given this obvious public interest, it is both surprising, and unfortunate for proponents of the Alcoholic Beverage Code, that the State of Texas does not appear to have taken as much of an interest in this case as it might have.
Judge Sparks did limit comedy to his commentary, and titled one section of his Judgement as:
2. Beers and Liquors and Wines, Oh My!
On the defense’s argument that The Texas Alcoholic Beverage Code is constitution because it is the Texas Alcohol Beverage Code:
In a remarkable (though logically dubious) demonstration of circular reasoninga tactic it repeats throughout its briefing, and which it echoed in open court TABC attempts to defend the constitutional legitimacy of the Code through an appeal to the statutory authority of the Code itself.
On the idea that the state should have the authority to define words however the legislature sees fit (and in what can only be seen as a tip of the hat to Freetail Brewing Co… right?):
Second, TABC’s argument, combined with artful legislative drafting, could be used to justify any restriction on commercial speech. For instance, Texas would likely face no (legal) obstacle if it wished to pass a law defining the word “milk” to mean “a nocturnal flying mammal that eatsinsects and employs echolocation.” Under TABC’s logic, Texas would then be authorized not only to prohibit use of the word “milk” by producers of a certain liquid dairy product, but also to require Austin promoters to advertise the famous annual “Milk Festival” on the Congress Avenue bridge. Regardless of one’s feelings about milk or bats, this result is inconsistent with the guarantees of the First Amendment.
This one isn’t so humorous as it is an insight into the larger issue that I have dealt with extensively: the restrictions of brewpubs to sell their beer to distributors or retailers for resale based on 3-tier arguments. Judge Sparks questions whether or not the concerns purported by the WBDT as reasons for not letting brewpubs sell their beer to distributors and retailers is a valid one.
Although unquestionablytrue whenthe Code was first written, andthe evils oforganized crime’s involvement in the alcoholic beverage industry were both immediate and substantial, it is less clear that vertical integration of the alcoholic beverage industry still poses a grave threat to Texas’s interests. In any case, in light of wineries’ exemption from these regulations, this purported interest is suspect.
In response to the defendant’s argument that the “Beer” and “Ale” distinctions are important for consumers to know how strong a product is in terms of alcohol, the Court reponds (my favorite part highlighted by me):
Although a typical member of the public may not be able, off the cuff, to state the average alcohol content of popular Texas malt beverages, the Court is confident that same person could, if presented with the alcohol content of a variety of malt beverages, come to a reasonably quick and accurate conclusion regarding their average range. Having determined the average range, this person could then make an intelligent choice whether to deviate from that range, in which direction, and by how much. The Court simply does not share TABC’s apparently low estimation of Texans, and remains steadfast in its belief that they are capable of basic math.
On why TABC’s lawyers presented what appears to be a less-than-full effort:
Regrettably, TABC has almost wholly failed to submit such evidence, and has often failed even to respond to Authentic’s arguments. Whether this failure reflects a tactical error, laziness, an implicit concession that the Code cannot withstand constitutional scrutiny, an erroneous assumption that TABC is entitled to special treatment, or a mere oversight, the Court cannot say. However, under the circumstances here, the Court is obligated to grant summary judgment in favor of Authentic on its First Amendment challenges.
On why just because TABC doesn’t know why it enforces stuff, it doesn’t make it unconstitutional:
However, as noted above, the state need not come forward with any record evidence whatsoever in defense of the Code. Further, just because particular individuals within the Texas governmenteven those of high rank within the administrative agency that enforces the law may not be able to articulate a reason for the Code’s disparate treatment, that does not mean no reason exists. Indeed, although it may well be desirable, there is no constitutional requirement that a personwho enforces of a law must also know the legislative purpose behind it.
Again, on defendant’s level of effort in defense:
The Court is shocked and dismayed at the Texas Attorney General’s halfhearted conduct in this case. The very purpose of having the Attorney General’s Office defend suits like this, is so the State of Texas can vigorously defend its duly enacted legislative mandates. Here, however, when TABC responded to Authentic’s challenges at all, it responded with little in the way of argument, and even less in the way of relevant evidence. The State of Texas is lucky the burden of proof was on Authentic for many of its claims, or else the Alcoholic Beverage Code might have fared even worse than it has.
Final note: I don’t feel the Attorney General let the TABC down as much as Judge Sparks thinks they did. Judge Sparks thinks the AG left arguments on the table, but I would contend THERE WERE NO ARGUMENTS TO PUT ON THE TABLE!
Been a fun day. Cheers everyone.
Happy Halloween to all – may your treats be craft beer and may no one trick you into drinking anything less!
Just a quick update to talk about one of the most anticipated days of the year for those of us at Freetail and many of you, Dia de La Muerta.
For those unacquainted, La Muerta is our Imperial Stout, brewed only once per year to coincide with the remembrance of our dearly departed on Dia de los Muertos. The draught release will always been on November 1 and the bottle release will always be the first Saturday of November, which this year falls on the 5th.
Dia de La Muerta has come a long way in a short amount of time. The first batch (2008) was actually released in February of 2009, was a little under 100 bottles and took about a week to sell. We only made about 6 barrels total of La Muerta and it took about 2 months to sell it all, but we started to see a few bottles pop up around the country and started getting calls about it. Why only 6 barrels? Our mash tun maxes out at about 1,000 lbs of grain and the grain bill for La Muerta is so intense that’s all we can yield from a single mash.
La Muerta 2009 was the first version to adhere to the traditional release dates, and had a bottle release of approximately 250 and sold out around 10 pm the evening of the release. We made about 6 barrels again and it sold out in about a month. Some of the 2009 was diverted to a freshly emptied bourbon barrel and 95 bottles of Bourbon Barrel La Muerta 2009 were released in February of 2010. Bourbon Barrel La Muerta was made available to members of our email list, who were mailed a “coupon” a few weeks prior to the event for redemption on a first come, first serve basis. The email was passed around to non-email list members and, if my memory serves me correctly, it was our first “instant sell-out” of any bottle release (which has become the norm). Sadly, reports of infected bottles started to surface (and I even had the misfortune of tasting a few) and thus (among other things) led to the decision to not do bourbon barrel beers anymore and devote our barrel aging program to our wild ales.
La Muerta 2010 was our first double batch, brewed on back-to-back brew days to increase the volume to 12 barrels. Even with twice the volume, we still sold out of La Muerta in a little under a month. We amped the bottle count to 450 available for sale, and witnessed a sell out in under 30 minutes. This is when we knew our imperial stout was really taking off. I started to see not just the occasional review from another state, but lots of out-of-state and out-of-country reviews (more on trading later). I immediately knew the following year we’d have to amp up the production yet again.
La Muerta 2011 was another double batch, brewed on October 5th and 6th. We’re spending all of Halloween day filling the 750 bottles that will be made available to the public, plus a couple of extras for “internal purposes”. Our bottle releases have gotten pretty big, and we know La Muerta is the grandaddy of them all and we plan on making this the best bottle release yet. We’ll have a staff member distributing “tickets” on a first-come, first-serve basis starting at 8am. You’ll need to turn in your ticket to buy your beers, which have a 3 bottle/person limit. If there are any left over after everyone makes it through the line, we’ll allow folks to buy more. Quite honestly I’m a little anxious to see if we make it completely through the line.
Since folks are known to show up as early as 8am to wait for a bottle release and… um, socialize… I’ve partnered with my friend Manny of Tin Can Tacos (follow him on twitter @tincantacos) for breakfast. Manny doesn’t do anything half-ass, and is bringing the heat for Dia de La Muerta. I don’t know what exactly he’ll end up doing, but he’s talked about “Borracho Carne Guisada con La Muerta” and “Borracho Black Bean and Cheese” and has politely requested we make beer available to him to make tacos with. Sounds like a plan to me!
So, why a 3 bottle limit? Well, there are a few reasons and all of them have to do with some personal philosophies of mine. The biggest reason is to ensure that as many people get an opportunity to get some as possible, while still providing opportunity for folks the chance to get multiple bottles to enjoy one now and age a bottle or two. In respect to trading, while I think it is very cool to see our beer pop up in other places and I don’t mind people trading – that is a personal choice the person trading the beer makes. With that said, I’m not inclined to make policies to accommodate beer traders at the expense of the people in my immediate community. At the end of the day, we’re a brewpub in San Antonio, TX and I want to take care of my fellow Texans and the people who visit us in San Antonio first and foremost. Our bottle limits are designed to give as many people as possible a chance to enjoy our beers – and I won’t increase a bottle limit so a trader can trade away his beer while keeping one to drink when it means someone who just wants to drink it won’t get a chance. That isn’t to say I’m “anti-trader” – I think trading is awesome. I’m just way more “pro-local who wants a bottle to drink” than I am “pro-trader.”
So there is a little history of La Muerta and some details for this year’s bottle release. Hope to see many of you starting on November 1 for draught (which, we don’t allow growlers of La Muerta because we’d run out way too quick… that goes back to wanting as many people to try it as possible) and I know I’ll see a ton of you on the 5th.