A nascent Bushwick brewery says one of the nation’s largest beer companies has stolen its whale of a name and started using it — all before the two-person Brooklyn brand could even sell its first pint.
The Brooklyn beer guys behind Narwhal Brewery decided last year that their startup would honor an obscure tusked cetacean that great whale penman Herman Melville once described as “curiously named.”
At first it was smooth sailing for Narwhal Brewery — that is until its owners claim they got harpooned by the California beer-makers at Sierra Nevada.
“We heard that Sierra Nevada was going to release a ‘Narwhal’ beer and I was like, ‘What a coincidence,’ ” said Narwhal Brewery co-founder Basil Lee, who hopes to set up shop in Bushwick in 2013. “We really like the name — to have them come in and take it is really frustrating.”
Lee and his colleague Kevin Stafford registered Narwhal Brewery as a limited liability corporation with the state in April 2011, but the rookie owners — who still work day jobs — didn’t think to file for a federal trademark.
The Chico, Calif.-based company says it cast nets far and wide to see if other brewers were using the arctic marine mammal’s name before filing the paperwork.
“Like all of the beers we’ve launched before it we did extensive searches,” said Sierra Nevada spokesman Ryan Arnold, who claims his company scoured the US Patent and Trademark office, state liquor boards, and consumer-oriented websites such as Beeradvocate.com and Ratebeer.com. “In the searches for ‘Narwhal,’ we found no other beers based or sold in the United States.”
Legal experts say Sierra Nevada would have the upper hand in a court case due to the trademark and because Narwhal Brewery has yet to sell any beer — an activity that can establish trademark rights.
“The federal trademark system definitely benefits whoever registers first,” said Barton Beebe, a professor at New York University’s law school and an expert in trademark law. “These kinds of David vs. Goliath disputes are very common in trademark law. Usually the Goliath wins.”
This isn’t a whale war yet — but the story is murkier than a chocolate stout served 10,000 leagues under the sea.
Lee claims Sierra Nevada, which is now the seventh-largest beer producer in the United States, initially told him it would withdraw its trademark application and sell off only the batch of beer it had made under the Narwhal name.
But Lee says he found out in November through an outside counsel hired by Sierra Nevada that the suds seller had an about face and wanted him to stop using the name.
“It was a bit of a shock,” said Lee, whose company doesn’t even have a liquor license yet, but has entered some suds in festivals and competitions and sold branded merchandise.
Sierra Nevada says it only took the legal route because Lee did first.
“We have never made any threats of litigation, implied or otherwise,” said Arnold. “Ordinarily, we would have been happy to continue the conversation between the parties. But, since they approached us initially via council, we have had to keep all exchanges through each party’s representation.”
Lee vowed to continue his fight — and said all he wants is a conversation with the company, with no lawyers.
“We’d be amenable to discussing a situation where everyone gets to use the name,” he said.
Sierra Nevada hinted that the ocean might be big enough for two brews honoring the spiky-headed sea beast.
“It isn’t our intention to damage any aspiring or emerging craft brewery,” said the company in a statement. “We hope we can find an amicable solution and can continue the community spirit that comes with making and drinking great craft beers.”Reach reporter Eli Rosenberg at erosenberg