These labels should all be pretty recognizable as having been inspired by other brands. Bryan Roth wrote an article for Good Beer Hunting on the topic, and one takeaway from that article is that there may not be an exorbitant amount of risk from a trademark perspective because we are generally talking about one-off sales with labels that would never be used again. Fleeting uses are not easily tracked and, even if tracked, proving trademark infringement and proving that you are actually entitled to monetary damages are difficult tasks with no certainty of success. There is, however, a different type of intellectual property concern that should give brewers pause: copyright infringement and the attendant statutory damages.

Copyright infringement, in some ways, is easier to establish than trademark infringement. In order to establish trademark infringement, a court considers a multi-factor test, which includes the relatedness of the goods. In order to establish copyright infringement, however, a court looks primarily to whether two designs are “substantially similar.” In other words, the court will not be concerned with whether the goods are similar. This is important because if the copyrighted work at issue is a cereal box or a luxury handbag or a movie poster, making out a claim for trademark infringement would be difficult because those goods are not similar to beer. The case for copyright infringement, however, would be much simpler because the question is about substantial similarity of the designs--whether the goods are related doesn’t matter.