Memo to your weed dealer: stop talking about dank “Nugs” or you might end up getting a cease-and-desist from Jake & Donna’s lawyers.

So that might be a little crazy, but HopEra, a brewery in Quebec, definitely did receive a letter from Burton Snowboards’ legal department last week, alleging a breach of “Private Authorized Dealer Agreement in reference to one of their beers, a double IPA called “Burton Air”.

Since presumably HopEra is not an authorized Burton dealer in any sense, I can only surmise that Burton is taking them to task over some bullshit “Intellectual Property” claim over their trademark on the phrase “Burton Air”.

HopEra’s Burton Air IPA

HopEra’s founder describes the history of their Burton Air, and how they came to name it as such. I’ll paraphrase it for those of you who don’t parler Français:

HopEra used a unique process of infusing their water with certain minerals, in order to mimic the character of the water at Burton-on-Trent (widely recognized as the birthplace of India Pale Ales), and upon brewing this beer they immediately took note of its distinct aroma. Thus, the name “Burton Air” derives from a tribute to Burton-on-Trent, their fondness of snowboarding, and a clever word play of false cognates (the French word “air” meaning aroma or smell).

Long story short, HopEra will be re-naming this beer for future releases, to avoid a potentially costly legal battle with Burton.

Does Burton’s Claim have Merit?

It is worth noting that aside from this year’s re-issue of the CK Air (which was produced in such limited numbers that it is already sold out), Burton hasn’t produced a Burton Air model snowboard in nearly a decade.

From a common-sense perspective, there is no justification for Burton’s claim of infringement: It’s beyond unlikely that anyone confuses the two products, and the use of the name “Burton Air” could not reasonably be construed as diluting Burton’s profits or brand name recognition in any manner. One commenter on HopEra’s facebook page chided:

C’est vrai que c’est facile de se tromper entre les 2 produits! J’ai été pour m’acheter une planche Burton Custom X et une fois à la maison je me suis rendu compte que j’étais en fait revenu avec une caisse de bière. — Cedric Lessard English Translation: It’s really too easy to confuse the two products. I intended to buy myself a Burton Custom X but once I got home, I realized my mistake: I had actually bought a case of beer!

From a moral perspective, “intellectual property” is bullshit on its face, such protections are generally a subsidy to large businesses who can effectively navigate the legal landscape and use IP laws to beat down their competitors, and in many areas it actually stifles innovation and competition. In the specific case of trade names like this, the only potential aggrieved party would be a customer claiming fraudulent conveyance. In other words, a paying customer might have a valid claim against HopEra if she could demonstrate that the brewery intentionally deceived her with regards to the nature of the product.

For the latest updates, follow @agnarchy on Facebook:

How does this affect you?

In extreme cases, this sort of thing is obviously damaging at an industry-level. Burton once tried to trademark the word “snowboard” (fortunately, they did not win this) which would’ve caused every other brand to either call their planks something else, or pay royalties to Burton.

These smaller claims are death-by-1000-papercuts. Companies like Burton must actively police their trade names, lest they be considered “abandoned” and thrown back in to the public domain, where they will no longer enjoy the privilege of exclusive legal use of the term. Corporate lawyers do this sort of work and it’s not pro bono, so the cost of looking for potential lawsuits to threaten, regardless of merit or validity, is very real and it’s built right in to the cost of your snowboards, boots, and bindings. Whether the accusations have merit, or would hold up in court, is usually irrelevant, because big companies like Burton know can run roughshoud over small brands like HopEra who for financial reasons are often unable or unwilling to litigate.

In the end, Burton comes out looking like a bunch of entitled assholes, and HopEra has to incur the costs of re-branding one of their beers. While HopEra has taken this all in stride, nobody really wins.