From Panther Island Brewery’s Queso Blanco to Acre Distilling’s Longhair Jim Straight Bourbon Whiskey, Texas brewers and distillers have been prolific and creative since the first modern craft brewers opened shop in the state in 1986.
But like any start-up, brewers and distillers can find their creativity hampered by trademark and patent issues. That’s where Kelly Hart & Hallman attorney Lee Hunt frequently steps in.
Hunt, an associate in the intellectual property section at the firm, focuses his practice on intellectual property, entertainment law and general commercial litigation in state and federal court. However, he has found a niche in working with the growing Texas brewing and distilling industry.
For Hunt, that typically covers four different elements, which are patents, copyrights, trade secrets, and trademarks, he said.
Trademark work makes up the vast majority of Hunt’s practice, followed by copyrights and trade secrets, he said. Trademarks are a symbol, word or words that are legally registered to represent a product, said Hunt, noting that the issue is not often at the top of mind for many startup businesses. Some examples of trademarks are the Ford, Domino’s or Target logos or the Nike swoosh, according to the U.S. Patent and Trademark Office.
Important and key as they are to commerce, Hunt finds busy entrepreneurs often let trademarks slip through the cracks.
“Since a lot of startup companies are clinging to startup capital and need to watch where every penny goes, a very easy way to avoid or mitigate the risk of getting one of those cease-and-desist letters is to engage an attorney that specializes in trademarks to assist in the process of naming a company, naming a product, things of that nature,” Hunt said.
If a company does not pay attention to trademarks, they may often find themselves spending more resources and capital fighting to keep a name someone else has already adopted, he said. That can be followed by more spending on rebranding, he said.
As to when a startup should engage an attorney for trademark work, Hunt has a pretty simple answer.
“There’s really no such thing as approaching too early,” he said.
The sooner a company begins the process, the sooner a company can put its efforts behind that trademark, he said.
“The Patent and Trademark Office has a system that will allow you to file a trademark application before you’ve ever begun using the mark, so you’re essentially asking the United States government to pre-clear your use for you.”
That part of the process does not usually take long, Hunt said.
“The sooner you can get an opinion on that, the less amount you’ve invested into that name, so the easier rebranding becomes if there’s something out there that is going to prevent your success with the mark,” he said.
After the opinion on the trademark is given, the client can either move forward and file an application or not. That part of the process is not quite as streamlined, Hunt said. Once a filing is made, the Patent and Trademark Office does not begin the review for about seven months, Hunt said.The patent office strives for three months, but the pandemic has lengthened the time period, he said.
That only means it is more important than ever to begin the trademark process as soon as possible, Hunt said.
Once that process begins, an attorney for the patent office conducts a search using the office’s trademark database to check for any reason to prevent registration of the mark.
Hunt said the two biggest issues companies encounter in filing a trademark application is finding that someone else has something similar for the same or similar goods and that the mark is too descriptive of the goods or services that people are registering it for.
“There’s a fine line that has to be walked in the process of selecting a trademark for a good or service,” he said. “You want a term that is going to convey to consumers what it is that you’re offering, but you also don’t want it to describe it to the extent that the particular term needs to exist for consumers to identify their own goods or services.”
Hunt uses the term “apple” as an example.
“Apple is a great trademark for a computer because it has nothing to do with food,” he said. “It would not be a great trademark for somebody who’s in the business of selling fruit because that name currently exists to describe the fruit.”
Hunt likes working with brewers and distillers because they have an entrepreneurial spirit and are very creative.
“It’s a fun spot to be in and the business has really grown,” he said.
Markus Kypreos, owner and president of Fort Worth’s Blackland Distillery, said he has worked with Hunt and advises other brewers and distillers to have a relationship with a patent and trademark attorney.
“It’s really smart to have someone who can handle those issues,” he said. “You never know when something will come up.”
Hunt didn’t expect to end up in patent law. Before attending law school, he served nearly eight years as a Houston police officer, working mostly in the Fifth Ward.
He went to the University of Houston for law school, and it was there that he took a class on patents and trademarks.
“It appealed to me,” he said. “It kind of surprised me, but I really took to it.”
Hunt served as a judicial law clerk to the then-Texas Supreme Court Justice Eva Guzman and became a trademark examining attorney for the United States Patent and Trademark Office in Alexandria, Virginia. Prior to joining Kelly Hart, Hunt was an attorney at Brackett & Ellis.
As for his current niche in brewing and distilling, Hunt said he is continuing to see innovation and that means more work for legal work in intellectual property.
“More and more companies are beginning to move towards and consider protection of not just their name, but also the packaging associated with their goods,” he said. “You can register, as a trademark, product packaging.”
It can be a uniquely designed bottle, or cork and he is seeing more of that as the industry grows.
“There seems to always be something new, which keeps it interesting.”
Bob Francis is business editor for the Fort Worth Report. Contact him at firstname.lastname@example.org. At the Fort Worth Report, news decisions are made independently of our board members and financial supporters. Read more about our editorial independence policy here.