Whose Stone is it Anyway?

A Little Less Conversation, a Little More Beer

Legal disputations over the use of the word Stone in brewing are not new. The current imbroglio, well-publicized on social media, involves California-based craft icon Stone Brewing going after giant Miller Coors for allegedly passing off its Keystone Light for a Stone product.

We watched carefully the video in which Greg Koch of Stone laid out the case for his company. On the face it, it sounds like a reasonable argument.

We hadn’t seen Koch speak before and noted his unique style. He starts the video with a quizzical look, as if not sure he should be doing this, but then does a lengthy, well-argued presentation for Stone.

At least in our view, much of the speech has an ironic, twinkle-in-the-eye undertone, which I find hard to read. This style, plus the deft production values of the video, probably led some to think he was seeking publicity more than anything else.

Yet, the facts as he detailed them seem to constitute a decent case. No doubt Molson Coors has its arguments, and it remains to be seen how it will play out.

It may interest observers there was litigation long ago involving a Stone Ale, in the U.K. in 1891. In the county of Stafford, brewer Joule & Co., based in a town called Stone, sold its ale with a virtual monopoly. Locals asked for Stone Ale and got Joule’s, pretty much the only game in town by the evidence.

Then, a gent called Montgomery established his Montgomery’s Stone Brewery in Stone. He stated he was just using a geographic name and Joule could not monopolize it. He argued he should be able to explain to the public where his beer was brewed without being taken to trade on the goodwill of Joule.

Joule argued that Montgomery intended that his beer be sold as Stone Ale and meant to appropriate their goodwill and reputation.

So, over 100 years ago, another brewers’ fight occurred over the Stone name, in a different context.

The case went, as they say, all the way up to the House of Lords, as the senior appellate tribunal in Britain was then termed. Joule & Co. won.

The court held that Montgomery could state in an appropriate way that his brewery was in Stone but the brewery’s name implied a trading on Joule’s rights, rights which long usage had reserved at common law to them. The court upheld the wide terms of an injunction granted by the trial court and rejected Montgomery’s attempt to narrow it.

In the town of Stone, United Kingdom, in effect the word Stone was Joule’s, just as Koch argued in the video that in beer, the word Stone belongs (in the U.S., at any rate) to Stone Brewing of Escondido, CA.

You can read a contemporary summary of the judgement, see pg. 86, here.

I’ll let Lord (Baron) Macnaghten have the final word, final of course for the matter before him. The Baron had been a distinguished Anglo-Irish barrister, you can read his full career in Wikipedia, here. 

As Wikipedia notes (whence the illustration of Macnaghten above), he was noted for developing the law of charitable trusts and for his elegant, concise description of the floating charge.

To the law of charities and secured transactions, we must add, or in my estimation, his contribution to the law of passing-off and the limits of relying on a geographic name to describe one’s business:

Thirsty folk want beer, not explanations. If they get the thing they want or something like it, and get it under the old name – the name with which they are familiar – they are likely to be supremely indifferent to the character and conduct of the brewer and the equitable rights of rival traders.

Perhaps he liked an ale or porter, of occasion, the Baron.

Note re image: the image above was drawn from the Wikipedia article on Baron Macnaghten linked in the text. All intellectual property in the image belongs solely to its lawful owner, as applicable. Used for educational and historical purposes. All feedback welcomed.

 

 

7 thoughts on “Whose Stone is it Anyway?

  1. Hi Gary
    This is a fascinating issue. Given the explosive growth in breweries and brands across North America, it can be a real challenge to come up with an original and pertinent brand (or even brewery) name that hasn’t been used already.

    Close to home, there was a short lived Canada Bud Brewery in Toronto as well as several blatant copies of the distinctive Budweiser label across Canada. I don’t know if their stories have been told in any detail.

    More recently, any connection between moose and beer sees an aggressive response from a certain New Brunswick brewery and Peterborough’s Smithworks brewery quietly became Smithavens, presumably urged by the owners of the Irish Smithw–ks brand.

    • Doug, thanks, all well-stated as usual. Names can be a real problem in the beer business today given proliferation of craft breweries. There has been some suggestion in fact that legal norms should be relaxed to take account of particular features of this market, but the underlying law has not changed in any of the jurisdictions as far as I know.

      Anheuser-Busch did finally stop the Ontario “Bud” from being sold, this many decades ago IIRC. It stopped an East Coast (U.S.) Budweiser with greater difficulty, finally by buying it I think (I did write about that earlier).

      Anchor Brewing is well-known for insisting on its exclusive right to use the name steam beer.

      I hadn’t known about the Smithworks case. Trade mark owners can be very intent on protecting their goodwill, and of course the Irish beer has been sold actively in Ontario for some time, so…

  2. Hi Gary ,
    Macnaghten also developed the ‘insanity’ defence over here in the UK (Macnaghten Rules) before statutory control .
    I also wonder what would happen vis a vis Falstaff ( a Walker’s of Warrington UK beer since at least 1875) if were to be brewed and exported to the US ?
    (And for that matter Ramsden’s of Halifax (UK) Stone Trough Ales , if the brand were to be revived )

    • Yes of course, you’re right Edd, I should have remembered that! They applied here the same way, in Canadian criminal law.

      The name issue is very much controlled by local conditions and law. Given for example that Stones Bitter, owned indeed by Molson Coors now, is sold in the U.K., I’d think Stone of California would be cautious in selling its product there, but apparently it does. Yet, it located its new European brewery in Berlin, not U.K. That Stones Bitter matter might be behind it, I’m just speculating. Maybe Stone thought just selling a small amount of bottled beer in U.K. would not disturb Molson Coors. Of course now, who knows.

      But anyway at bottom it’s all a matter of the local factual situation and history and laws in each place…

      Gary

      • Hi Gary ,
        Yup , local conditions are a big factor in that debate.
        The thing that puzzles me is the grounds for Stone’s claim, considering the Different colour branding and font size & style between the two brands (from the photos I’ve seen of them)
        Regards
        Edd

        • While I’m not an intellectual property lawyer, much less an American one, to me, to use the same name, just that, for another beer product, if that’s how the Keystone product placement/advertising will sometimes show it, raises an issue. Unless, that is, MC has a history of using the name alone, which it says it does, but I understand Stone of California has a registered trademark, a federal one I think. The reports I read suggested that MC had been denied a registered trade mark for Stone alone. Anyway, I’m just speculating, the process will continue and be resolved ultimately one way or another.

          Gary

          • Hi Gary
            I understand and sympathize with both sides of the debate , however as you said , it will all be sorted out eventually , hopefully with a marked lack of vitriolic invective on both sides ,
            Cheers
            Edd

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