Friday, July 13, 2012

Tod Mott - A Farewell and Appreciation

Yes, you heard right:  Tod Mott is leaving the Portsmouth Brewery.  After toiling for eight and a half years in our little submarine-hull sized brewery, producing a seemingly endless river of fine beers and sharing his deep passion for his craft with an eager and growing audience, he has decided to move on.  I enjoy reminding people that I hired Tod Mott at precisely the same time the Red Sox signed Curt Schilling.  The Sox thus took a first step towards ending their 86-year World Series drought, and we at the Brewery embarked on a journey that has led us to become one of New England’s premier beer destinations.  Tod arrived shortly after the Brewery had entered its second decade in business, at a time when the craft beer industry was picking itself up and dusting itself off after the brutal shakeout of late nineties had flushed a lot of small breweries and crappy beers out of the marketplace.

Peter & Tod in the Portsmouth Brewery's "fishbowl" - 2003
Brewers who survived those dismal times began to dare to think that maybe, just maybe, our ships might actually come in, that small-batch, handcrafted beer might finally emerge from its beer-geek ghetto and draw the attention and appreciation of a wider audience.  Tod Mott could not have arrived at the Brewery at a better time.  We were looking for a rock star, and he was looking for a stage that fit his big personality and his boundless enthusiasm for fine beer and comestibles, not to mention his magnetic physical presence.  It felt like a match arranged by the beer gods.  And it almost didn’t happen.

I’ve been trying to remember the first time I met Tod, but the circumstances have become hazy with too much time and too many beers.  It was probably in Northampton, Massachusetts, at one of the early Great New England Beer Festivals, which my sister Janet, along with Chris O’Connor, Joanne Francis and I produced, around ’92 or ’93.  After four years as Head Brewer at the Northampton Brewery and with the opening of the Portsmouth Brewery, my own brewing career had come to an end, just as Tod’s was on the ascent.  Like everyone else who came into his orbit, I was drawn to him immediately.  Over the years, we crossed paths at numerous beer-related events, and during his time at Back Bay Brewing I made it a point to stop into that establishment whenever I was near Boyleston Street to enjoy one or two of Tod’s excellent beers.

In 2003, we needed to fill the Head Brewer’s position at the Portsmouth Brewery.  After we put feelers out in a number of directions, Dave Yarrington, Director of Brewing Operations at Smuttynose, who had offered to help with the search, suggested that we contact Tod, who was brewing at the Tap in Haverhill, to see if he knew of any qualified brewers we should interview.  I thought that this was a fine idea, given Tod’s extensive connections in the brewing community, but I never would have anticipated Tod’s two-word response:  “Yes. Me.”   Words can’t fully express how charmed I was at the idea of Tod Mott - THE Tod Mott -  joining our little family at the Portsmouth Brewery.

During Tod’s tenure at the Brewery a lot has changed.  Interest in craft beer has exploded.  Closer to home, business in the restaurant, and along with it the demand for beer, has increased dramatically.  Sales of bottled beer and growlers has skyrocketed.  The number of employees at the Brewery has increased from about 65 to over a hundred.  And without an ability to increase the capacity of the physical plant, due to space constraints, Tod has been challenged to keep the beer pipeline filled, supplemented with hand-selected guest beers.  He has met that challenge not by taking the safe route of falling back to a shrinking portfolio of safe, predictable beers, but instead has expanded the range of offerings to include a vast array of seasonal, traditional and experimental styles.  And that’s not to mention the once-quiet annual release of an obscure beer style called Russian Imperial Stout that has become the phenomenon known as Kate Day.

I’ll be perfectly honest: I could not do what Tod has done every day for all these years.  And I am not just talking about his skill as a brewer. My brewing career ended over two decades ago when the industry operated at a very primitive level and standards of quality were, to put it politely, in flux.  No, I’m talking about plain physical work.  Tod and I are about the same age.  What age is that?  Let’s just say we were both born during the second Eisenhower Administration and leave it at that.  And although he’s a remarkable physical specimen, working in a small brewery is hard, stressful work.  That’s a long way of saying that I was not entirely surprised when Tod came to me a few weeks ago and said he was ready to take a break from it.  Frankly, I think he’s earned it, though I know he’s not going to sit still.  I understand that he and Galen intend to open their own brewery in southern Maine.  So far their plans are at an early, formative stage.  And that’s about all I know myself, but I can say that I am excited to watch their progress and sample their wares, among which will be his world-class imperial stout, no doubt.

What will life at the Portsmouth Brewery be like after Tod’s gone?  Permit me to refer back to baseball again:  Ted Williams roamed left field at Fenway Park for nineteen seasons and retired in 1960, hitting a home run in his final at bat as a grace note to his unparalleled career.  No one expected that the young man who jogged out to left field on Opening Day in 1961, the man who replaced the Splendid Splinter, an oddly-named rookie born in 1939, the same year that The Kid broke into the majors, would be able to fill William’s shoes.  No one could know then that Carl Yastrzemski would earn legendary status himself, playing another two-plus decades in the shadow of Fenway’s iconic left field wall.  I’ve been in the craft beer business for 25 years and have seen a lot of changes, both within and outside of the companies I’ve been involved with.  If I’ve learned anything along the way, it’s to embrace change and befriend it.

Tod’s successor is Tyler Jones, whom many of you knew as Tod’s long-time assistant, before he left the Portsmouth Brewery and took a position at Smuttynose Brewing in late 2011.  Tyler’s credentials are impressive in their own right, but assuming the role of Head Brewer at the Portsmouth Brewery is a kind of homecoming for him.  Will he be Yaz to Mott’s Kid?  Time will tell, but I’m confident that Tyler will make his own mark at the Portsmouth Brewery, and it will be a fine one, too, and I, for one, am looking forward to it.

Farewell, Tod.  Thank you for your excellent beers and even better company.  Welcome aboard, Tyler.  Left field awaits you.

Peter Egelston
Portsmouth, New Hampshire
July 13, 2012

Monday, August 16, 2010

On New Hampshire's 14% ABV Limit

This morning I noticed a thread on Beer Advocate in which the original poster lamented the 14% alcohol by volume limit on beers sold in the Granite State. I posted my two cents' worth:

I've been following this thread and thought I'd weigh in with some background on this topic. When my partners and I arrived in the Granite State in 1991 to open the Portsmouth Brewery, the alcohol limit for beer sold in the state was 6% abv. In 1995, the year after Smuttynose opened, I met with with our local state sentator and the director of the state's wholesale beverage association to discuss a number of possible changes to the state's beer laws, including raising the 6% limit. The wholesalers' representative thought raising the limit was a political nonstarter, since he was convinced the neo-prohibitionist lobby would crawl out of the woodwork to oppose it. We pressed ahead anyway, forming a group of small brewers and sympathetic legislators. After a good deal of discussion, it was decided that a 12% limit might be sellable, but we weren't even sure about that. (Politics, remember, is the art of the possible.)

As it turns out, organized opposition to the bill never materialized. During testimony, the thing many legislators were most curious about was how many great beers were not available in the state, due to the 6% limit. Commerce, it turns out, won the day. 

Interestingly, in 2007 the wholesalers, who in 1996 were mildly opposed to raising the limit from 6 to 12%, brought forth their own bill proposing raising the limit to 15%, arising from their interest in selling high-octane flavored malt beverages. I didn't want to spend any of my own political capital promoting Mike's super-extra-hard lemonade, but I didn't want to pick an unnecessary fight with the wholesalers (with whom I've built a good, productive relationship), so I sat on my hands and didn't support or oppose this bill. My recollection is that the proposed 15% limit got reeled back to 14%, with the special approval provision added in. 

So that's how we go to where we are at this point. And while I wouldn't discourage anyone from riding their ponies to the statehouse to exercise their rights of citizenship, I'll just point out that with respect to alcohol limits, at 14% most of the battle has been won. Any increases beyond that will be harder and harder to achieve, politically speaking, because the constituency served gets smaller and smaller.

There are lots of amazing beers that are not available in New Hampshire, and the alcohol limit has nothing to do with it. Our is a state whose retail landscape is dominated by three supermarket chains who favor big, nationally advertised brands. This fact influences the way our wholesalers do business: with relatively few retail outlets for truly specialized beers, they tend to shy away from them. If the readers of this forum are really interested in expanding the selection of beers in New Hampshire, the best place to focus their energy is not on the statehouse, but on the major retailers. Next time you are in a Hannaford, Shaw's or Market Basket, take a few minutes and drop a card in their suggestion box asking why many of your favorite beers are not available there. 

A number of people participating on the forum expressed that legislation should be proposed to raise the 14% limit, or do away with it altogether. To them, I say go for it. However, I hope I don't sound too cynical by adding that it is far easier for a single individual  to get in his or her car from time to time and drive to a store in Maine or Massachusetts to purchase beers unavailable in New Hampshire, than it is to become educated about the mechanics of legislation, draft a bill, locate sympathetic legislators, take time to travel to the state house to testify (sometimes multiple times), round up public support, persuade potential opponents to change their positions or at least keep quiet - in short to lobby for a change in the law that will benefit some consumers but have limited consequence in the grand scheme of things. 

That is why, in my opinion, legislation of any kind is generally promoted by those who have a commercial stake in its passage (or defeat), because they are the only ones for whom it is worth devoting the time and resources  required. Sadly, most of the time the voice of the consumer is absent from the discussion. 

Monday, August 2, 2010

On the Portsmouth Brewery's New Menu

Since the Portsmouth Brewery started serving its new menu about a month ago, we've gotten some nice press and a lot of feedback. Though most of it has been positive, a sizable minority has expressed disappointment at the disappearance of certain favorite items, such as our Rhode Island style calamari, steak bomb sandwich, meatloaf, crab rangoon, grilled chicken breast & basil sandwich, salmon sandwich. In responding to these comments, I've found myself touching on the same points, so I thought I'd publish a variation of a letter I sent recently to a regular customer who wrote lamenting the loss of some of her favorite items. Here's my letter. Please let me know what you think.

- Peter

Good morning,

Thanks for following up with me. I've passed your comments along to our chef and his staff, as well as the rest of the management team at the Brewery.

As I'm sure you know, the Portsmouth Brewery is in its twentieth year in business. Over time, we've made numerous changes to our menu, large and small. In fact, our menu, as it's evolved to this point, bears only slight resemblance to the one we opened with back in 1991. There are a variety of reasons why we make these changes:

• An item is not selling well. (It's always tough to be the slowest antelope in the herd!)

• Something has become cost prohibitive, and we would have to charge more for it than would be reasonable. This was basically the fate of our salmon sandwich, which we lost money on every time we served it. We could have kept it at a reasonable price by substituting a cheaper variety of salmon, but we have opted instead to offer salmon as a special when we can offer the best combination of quality and value.

• An item is not logistically feasible to produce. The Brewery does four times the level of business it did in its early years, and about twice as much as when we last expanded our kitchen fourteen years ago. We are constantly faced with the challenge of putting out a greater and greater volume of food from a kitchen that can not be expanded. All this without sacrificing quality. Again, there are easy ways to put out more food - mostly by purchasing pre-prepped boil-in-bag or drop-and-fry items - but we've never gone that route.

• We need to make room for new, interesting items we wish to try out. Due to the previous reason, any new item requires an existing one to be dropped.

• Sometimes, menu items have simply lived out their lifespan and it's time for them to go. When we first opened in 1991, we served fajitas and overstuffed California-style burritos (my sister and I are both from southern California, so this was a natural for us). A few years later when we saw fajitas featured at McDonald's and burrito joints popping up everywhere, we decided it was time to move on.

• But perhaps the most important reason we make periodic changes to our menu is to remain fresh and interesting to our customers, both old and new. Operating a new restaurant is a very different proposition from running one that's two decades old. We are tasked with being both comfortably familiar and fresh and interesting at the same time - it's quite a challenge, but one that we have a lot of fun taking on.

We try not to be too sentimental when it comes to making these decisions. Some of my personal favorites have gone by the wayside over the years (including those burritos, our pizzas and a great fresh avocado & roasted turkey sandwich with homemade red pepper mayo that we used to offer). And when we do make changes, we are always bound to disappoint customers who have grown attached to items that we no longer serve. It's a difficult situation to be in, because in the hospitality business, we here to say yes, not no.

So, now that you've had a look behind our curtain, perhaps you'll take another look at our new menu and regard it differently. We're really happy with it, and the reaction thus far has been overwhelmingly positive. Yes, we've definitely heard from people who've seen a favorite item go away, but I think we still offer one of the most wide-ranging, interesting and creative selections of food around.



Tuesday, February 9, 2010

On the Smuttynose Big Beer Series Release Schedule

Like many beer fans, I am an avid reader of Beer Advocate. And if you're reading this blog, and you aren't a Beer Advocate already, you should be. I'm going to leave the room for a few minutes to give you time right now to sign up.

All set? No on to my post...

As owner/operator of two small breweries, I also read Beer Advocate to see what people are saying about Smuttynose Brewing & the Portsmouth Brewery. (Kind of like googling yourself, I guess) This morning, I noticed a post about our Big Beer Series release schedule and felt compelled to weigh in, which I don't do very often. Here's the initial post in the thread:

Smuttynose big beer schedule?

So being a big fan of the smuttynose big beer series I was quite excited to see the line up for 2010 line up. And even more excited to see the first beer sceduled for Jan was a barleywine. So here's the question, needless to say were a week plus into february and I have seen no sign of the barleywine. Am I the only one or has this for some reason just not made its way into VT? Any thoughts?

Followed by my lengthy response:

Peter from Smuttynose here, weighing in on a subject that's near and dear to my heart - our Big Beer Series. First of all, let me say how great it makes us at Smuttynose feel to see how highly sought after these beers have become. It doesn't seem that long ago - back in 1998 when we began the series - that we had pallets of the stuff gathering dust in our warehouse, with wholesalers and retailers alike telling us that "Big Beers in Big Bottles" was a really stupid idea. "Why don't you make beers that are more 'drinkable,' like Corona?" we were told. We didn't agree, and, thankfully, beer lovers didn't, either.

But on to the subject at hand. Our Big Beers appear at different times in different markets for a variety of reasons, several of which have been pointed out above. Let me begin by stating that we offer each new Big Beer edition to every market in which we have distribution at the same time; we don't release in one place and hold back in another. I can't think of a good reason why we'd do that, yet we've been accused of it nonetheless. We have altered our release schedule from time to time, sometimes delaying the release of a particular edition because the previous edition is moving more slowly than anticipated and it is backed up in our warehouse. In 2008, during the worst of the hop shortage, we reshuffled our release dates to match the availability of certain hops.

In addition to that, a number of our wholesalers have the maddening practice of only keeping one edition in stock at a time, not even allowing for an overlap. They wait until one edition has been completely depleted before ordering the next one. That means that an entire market, or even a whole state, can be devoid of Farmhouse Ale, for example, because half dozen cases of Maibock are sitting on a distributor's warehouse floor. This can result in our Big Beers drying up throughout an entire market, just because of those half dozen cases.

Most successful independent retailers, and a few chains actually prefer to feature several editions of our Big Beer Series simultaneously, but it's hard to convince some wholesalers, who are terrified of being "stuck" with unsold stock. In fairness, a growing number of wholesalers are getting more comfortable and skillful at managing multiple SKU's of smaller brands. In that regard, they are becoming more like wine distributors (which some of them are) than conventional beer wholesalers, who have traditionally succeeded by moving massive volumes of boxes at a high velocity, with razor-thin margins. Many retailers are evolving their business models to keep up with changes in consumer demand, as well. This "back to the future" model - smaller volume, slower velocity, higher margins - is an interesting alternative to the Big Box retail landscape that's emerged globally over recent decades.

Remember, too, that the chain of communication in the beer business is complex and fragile, involving as it does management, sales and production at the brewery, and management, warehouse operators, sales managers, and street level sales rep's on the wholesale side. At the retail level, the players involved are purchasers & category managers (in the case of chains), and store-level managers. All of these parts rarely make for a well-oiled machine, especially when you're a tiny supplier like Smuttynose. Sometimes our products don't reach the consumer in a timely fashion because of a simple failure of communication somewhere along that chain.

Our home market in New Hampshire is dominated by three large supermarket chains, which impacts that market profoundly, as they tend to focus on nationally advertised brands and have less focus on small, local suppliers. The handful of independent stores do the best they can, but there aren't enough of them to form a critical mass, and the consumer ends up with far fewer choices than in neighboring states. (At Smuttynose, we are beer drinkers as well as brewers, and we lament that fact as much as any of the rest of you!)

It's worth mentioning that as consumers, we are in the driver's seat. In my view, that is the best thing about the Beer Advocates, they (we) are, well, Beer Advocates who have driven massive changes in the beer industry, which is very different today than when I started 23 years ago. And it continues to change. We're not done yet!

OK, I've killed way too many pixels writing this, so I'll call it quits now. Thanks for listening.



Saturday, October 17, 2009

Trademark Disputes: Vermonster v. Monster Energy Drinks; Smuttynose v. Bass Ale, &tc.

A few days ago, I received multiple copies of a YouTube clip in which Matt Nadeau, owner of the tiny Rock Art Brewing in Vermont, describes the dispute he finds himself entangled in with a corporate behemoth over the use of a trade name. In short, Rock Art produces a barleywine called Vermonster, which Hansen Natural Corp. claims infringes on its Monster Energy Drink line.

Watching Matt, whom I know to be a genuinely good guy who works hard and makes great beer, grimly describe his plight and the very real threat he faces, it is easy to see his justifiable hurt and outrage. Frankly, I hope the masters of Monster Energy drinks can be shamed into backing off, but I am not optimistic. I suspect that once a big corporation has loosed its lawyerly dogs of war, there is no turning back.

Still, in the age of YouTube and social networks, Matt and the good folks at Rock Art have a lot more leverage than they might have even a few years ago. If they succeed in giving Hansen Natural Corp a big enough black eye, perhaps the little guy will prevail after all.

As you might guess, disputes over trademarks are very common in the world of consumer products, where brand identity is everything. Trademarks are the most valuable assets producers of such products own. In fact, when one company is purchased by another, those assets are often the only ones of any value whatsoever. Sometimes a dispute results from a new company unknowingly infringing on an established mark. There are other cases where the infringement is deliberate, where one firm attempts to steal another's hard-earned brand identity. Other times, they arise from one party's overly broad interpretation of the protection their trademark is entitled to. Occasionally, I believe, trademark disputes are a form of corporate bullying, where a large firm with deep pockets threatens a smaller company with endless litigation, even if the claim has little merit.

Where does the case of Monster Energy Drinks v. Vermonster Barleywine fit in? I don't know enough details of the matter to say, but I am reminded of the various trademark disputes my companies have been party to over the years, especially the first one, in which the nascent Smuttynose Brewing Company found itself squared off against another corporate behemoth - Bass Ale.

The year was 1995. We had formed our company the year before and were busy bringing our first two products to market - Shoals Pale Ale and Old Brown Dog. In between more pressing daily matters I attended to various pieces of legal housekeeping, including registering our trademarks with the United States Trademark and Patent Office. I had been referred by our local attorney to a firm in DC that specialized in trademarks and patents, who promptly filed trademark applications for our logo, our trade names, as well as our catchy slogan (which we no longer use): "Make Mine a Smutty!" All this seemed like a fairly straightforward process, and I did not anticipate any problems.

When a new trademark application is filed, it is published for a period of time allowing it to be reviewed by other trademark holders for possible conflicts or infringements. Much to our surprise, during this review period, we received word that Bass Ale was challenging our application with the claim that it infringed on their well-established trademark.

My immediate reaction was "no fucking way!" According to the paperwork that Bass filed, their trademark consisted of a red triangle. It even stated that the color red was an "integral" part of their mark. Our logo depicted the head of a harbor seal framed by a yellow triangle in the background, over letters spelling Smuttynose (in Caslon Antique) Brewing Co. (in Bauer Bodoni and Kuenstler Script). In my view, there was little chance that any reasonable person would confuse Bass's elegant red triangle with our little pinniped.

I am by no means an expert, so take everything I'm about to say with caution, but, like most people in highly regulated businesses, I've become a bit of a jailhouse lawyer by necessity. And here's what I've learned over the years about trademark disputes. The crux of trademark law hinges on confusion. Does an offending mark create confusion in the eye of the consumer to the point where the offending mark benefits from the equity and good will in an already established mark? Or, to put it in the quaint phrase used by a trademark lawyer I once spoke to, "Is someone trying to reap where they have not sown?"

At the end of the day, that is the basic test that the successful defense of a trademark must meet. In some cases, this is pretty straightforward, a matter of common sense. For instance, if I manufactured a new line of baby food, and I selected the distinctive script used by Coca Cola for my branding, I'd certainly be challenged by Coca Cola, and they would have a compelling case because the likelihood that a consumer would associate that style of lettering, and thus my baby food, with Coca Cola is very high. At the same time, Coca Cola would probably not pursue a firm that used that script to market an MP3 player.

A real-life example is the clothing company that blatantly rips off the typeface used for decades by a large airline. Is American Apparel infringing on American Airlines trademark? Evidently not, because the are in completely different categories, which is an important distinction in trademark law. Clothing and airlines are entirely differently animals and are not likely to be confused. Another interesting aspect of trademark law that I learned is that color schemes can not be trademarked. That is why virtually every box or aspirin you see is yellow and brown, a direct imitation of the package of the original branded aspirin, Bayer.

Is there any chance that a reasonable person, when confronted with Rock Art's Vermonster Barleywine, might infer from that name that it is somehow connected to Monster Energy Drinks? I think most people would say the same thing I did when I heard about Bass Ale's challenge to our trademark application: "No fucking way!"

Sadly, however, being right does not always win the day. When I head about Bass Ale's challenge to our trademark application, I wanted to fight them because I felt we were right. But our lawyers gave me what I still consider to be some of the best legal advice I've ever gotten. They asked me, "What's more important to you, being right, or staying in businesses?" They explained that even though Bass Ale had, in their opinion, a weak case against our application, they had the resources to bankrupt us in the process. We could go to the mat over this issue, and we might well win, but it would be a Pyrrhic victory in the end, and it would snuff our little company out before it had even left the cradle.

I thought long and hard about it. Somehow it seemed so wrong to give in. At the same time, as I discussed it with my partner Joanne, who designed the original logo (and all Smuttynose images and packaging since), we decided that we could reconfigure the logo to satisfy Bass's complaint and at the same time come up with an improvement on the original.

Once we became open-minded to this approach, it was fairly easy to convert the original triangle that framed our little seal with a triangular-shaped rock. Bass's lawyers were satisfied with the change, and our trademark application was approved without further challenge.

I've never regretted making this decision. Frankly, I do think the amended version of our logo is an improvement over the original. I like to tell people that Bass might have inadvertently done us a favor by forcing us into this position. It's not a position I would have chosen, and certainly not one I'd wish on anyone else. It feels awful to have your dream and livelihood threatened by a huge, heartless corporation. Sometimes it is important to fight because you are right; other times it is not. You have to pick your battles carefully.

As I said, though, that was only the first of many trademark disputes that we've been party to. Interestingly, over the years, I've become more sympathetic to Bass Ale's position, as I've had to send several letter off myself to companies that I felt had trespassed on our intellectual property. Here are a few examples of other trademark disputes we've had to contend with:


Back in the mid 90's, we introduced a wheat ale that we called Chuck Wheat. Although it's been many years since we discontinued it, the label Joanne designed is still one of my favorites of all our labels. After Chuck Wheat had been on the market for about a year, we received a threatening letter from a law firm representing the putative manufacturers of a product called Red Neck Beer, claiming that our Chuck Wheat label violated their trademark. Accompanying the letter was a set of (unintentionally) hilarious point of sale items, promoting this beer.

Red Neck Beer had not yet gone into production (they were still looking for investors), but according to their literature, they had big plans to market to a Dukes of Hazzard demographic - microbrew for the NASCAR set. Their graphics consisted primarily of an illustration of a red bandana poking out of a blue denim pocket. The letter we received claimed that Red Neck Beer owned the exclusive right to use blue denim in any context related to beer. Leaving aside the audacious stupidity of the entire concept of Red Neck Beer, it was easy to see that this was merely a fishing expedition. We didn't bother responding to the letter, and we never heard back from our friends at Red Neck Beer. Thankfully, the American beerdrinking public never heard from them either.


A few months after the 1998 release of our Portsmouth Lager we received a letter from an attorney representing a lobsterman who claimed that because we had not sought his permission to photograph his buoy, we had violated his "registered trademark." Furthermore, the letter said, this lobsterman had experienced "pain and suffering" at the hands of his fellow lobstermen who had been ruthlessly teasing him about his buoy being depicted on a beer label. and suggested that he was entitled to some sort of compensation

Where do we start? I started by calling my attorney and asking if I could please, please, please write back to this lobsterman's attorney and tell him to go piss up a rope. My attorney, a wise and affable man, said no, I couldn't - he'd take care of the matter himself, and he did. Here's the deal. The photo on the label depicts a barn door located on a well-traveled road in York, Maine. The door is festooned with colorful buoys. Like many people in this region, the barn's owner had decorated it with lobster trap buoys that wash up on the beach after storms. We did get written permission from the property owner before taking our photograph, and that is all the permission we needed. And while it is true that holders of Maine lobstering licenses must register their color patters with the state, this is merely for the purpose if identifying submerged traps and has nothing to do with trademarks.

As far as the pain and suffering goes, I can't shake the image of this big, tough lobsterman, decked out in his bright orange bib, being brought to tears by the merciless taunting of his mates. Poor man! It truly breaks my heart. We never did hear back from him or his attorney, so I guess he got over it.


In 2000, our now-defunct cross-state competitor, Nutfield Brewing, formed a partnership with Don Jones, the former owner of Frank Jones Brewing, where Smuttynose is now located, to revive the Frank Jones name. Frank Jones Brewing has a long history here on the seacoast going back to the 19th century; its final chapter ended with their bankruptcy auction in December, 1993, at which I purchased the equipment we used to start Smuttynose Brewing Company. To be honest, I wasn't that concerned when I first read about this new partnership in the Portsmouth Herald - Nutfield's sales were rapidly heading south, and the Frank Jones brand had never gained any traction before, and there was no reason to think it would be different this time.

I changed my tune, however, when I learned that they were planning to market this product as Portsmouth Ale, an historic Frank Jones brand name. There were several problems with this, in my view. First of all, we had registered the name Portsmouth Ale with the state of New Hampshire, though we had not used it in commerce. More importantly, we had been selling a product called Portsmouth Lager for several years at this point, and I was concerned that consumer confusion was a real danger. In addition, this product was explicitly affiliated with Portsmouth: the slogan on the label deceptively stated "First Brewed in Portsmouth - 1899." Brewed in Derry, it was clearly a carpetbagger's attempt to horn into our own home market. It was my opinion that Nutfield was trying to ride Smuttynose's coattails in an attempt to break into a market that they had never had much success in, namely the Seacoast.

But most of all, I was concerned about the potential this product had to damage to my company's reputation. I never held Nutfield's beers in particularly high regard, and the thought that people might think Smuttynose was making Portsmouth Ale made shudder. Nutfield was already beginning the slow, downward spiral that would lead first to its shuttering its plant and moving production to Shipyard in Portland, and later to its disappearance altogether. The Frank Jones partnership was one of the many straws that Nutfield grasped at on its way down the drain.

Over a period of several months I fired several letters off to the president of Nutfield, each worded more strongly than the last. I felt I had a good case against him. Predictably, he responded defiantly, disputing my claims. Just as I was preparing to initiate legal action, Nutfield abandoned its Frank Jones project, and it was never heard of again, so fortunately I was able to avoid suing a fellow craft brewer.

I do hope we never stumble into another trademark dispute. We've been fortunate so far in that we've avoided the courtroom and unpleasant public spectacles. Realistically, though, we've probably not seen the last one. It is part of the business we are in.

Saturday, September 19, 2009

Uncle Sam, Nanny

"Barleywine is a term originally used by British brewers to describe very strong ales. Though individual examples of this style vary widely, barleywines are characterized by their full body, high alcohol content, pronounced residual malt sweetness, fruity esters and, in the case of American versions especially, distinctive hop character, with a flavor profile that can lean towards the sweet or the bitter, or somewhere in between, and a color ranging from amber to deep copper. Barleywines tend to age nicely, especially bottle-conditioned versions, and have become quite collectible."

That style description - well-known to any beginning homebrewer or casual beer fan - could not be made on our website. In fact, I've just spent the last hour expurgating all references to alcoholic content and relative strength from the descriptions of our beers on our website in order to comply with Federal law. That in response to a letter we recently received from the Federal Tax & Trade Bureau which cited our website as violating the Federal Alcohol Administration Act (FAA Act) and TTB advertising regulations. (That statement above was one of the examples cited in the letter as violating the law.)

The specific law - 27 CFR 7.54(c)(1) - says:

(c) Alcoholic content. (1) Advertisements shall not contain the words “strong,” “full strength,” “extra strength,” “high test,” “high proof,” “full alcohol strength,” or any other statement of alcoholic content, or any statement of the percentage and quantity of the original extract, or any numerals, letters, characters, figures, or similar words or statements, likely to be considered as statements of alcoholic content, unless required by State law. This does not preclude use of the terms “low alcohol,” “reduced alcohol,” “non-alcoholic,” and “alcohol-free,” as used on labels, in accordance with §7.71 (d), (e), and (f).

Interestingly, the law does not prohibit you from stating the actual alcoholic content, in numerical terms (ABV). A later section of the Code of Federal Regulations (27 CFR 7.71 (a)) says:

(a) General. Alcoholic content and the percentage and quantity of the original gravity or extract may be stated on a label unless prohibited by State law.

So there you have it. While you are permitted to state that a particular Barleywine weighs in at 11.5% abv and a particular Pale Ale weighs in at 5.1% abv, but you can't say that the former is stronger than the latter. Nor can you assert that one of the things that distinguishes a Double IPA from a regular IPA is that the former has a higher alcohol content than that latter.

Evidently, Uncle Sam doesn't want you, the consumer, to have this information, or, more likely, he doesn't trust what you'd do once you had it. After all, if everyone knew that Imperial Stouts were stonger than their non-Imperial cousins, who knows what would happen?

Monday, September 7, 2009

Why We're not Shaving Heads for St. Baldrick this Year.

Last year, Smuttynose Brewing hosted what we hoped to be the first of many annual St. Baldrick's events. It was a smashing success - 24 intrepid souls volunteered to have their heads shaved, and in one afternoon we raised over $22,000 for childrens' cancer research. This year,
we planned to hold an even bigger event in the middle of Market Street in front of the Portsmouth Brewery on the same day as the Portsmouth Criterium bike race (which requires Market Street to be closed to traffic), with more heads shaved and more money raised.

That was our plan, until I made the decision to cancel the event. A few weeks ago, we were finishing up our list of administrative tasks and were about to launch our big publicity push to kick things off when I received an email from the St. Baldrick's Foundation with the subject line "Welcome to our Background Screening Process." Inside was the following message:

Thank you for volunteering for the St. Baldrick’s Foundation. You have been listed by your Volunteer Event Organizer as one of the key volunteers in a position of responsibility for your event. As you know, protecting the integrity of donations and the safety of our constituents is important to the reputation of the Foundation and its volunteers. Therefore, certain key volunteers are asked to complete a background screening before your event can be made ‘live’ on our website.

To be prefectly honest, I was somewhat taken aback by this; we'd done the event last year and hadn't been asked to submit to a background check. Moreover, I've worked with a number of non-profits and fundraisers and had never seen a request like this - but I went ahead and clicked on the link provided and was directed to a website with this opening screen.

I was just about to start filling out the form when something stopped me cold in my tracks. It wasn't the prospect of being investigated. As a holder of two federal Brewers Notices and a state liquor license, my background has been thoroughly scrutinized. Yes, it was partly the presumption and chutzpah of the demand that I submit to this demeaning and invasive process in exchange for the privilege of volunteering many hours of my time raising funds for this cause. But that wasn't what stopped me.

We live in a world where we are subjected to daily invasions of our privacy by government, by banks, by credit agencies, by employers, and for the most part, we all go along to get along, don't we? This time I just had to say no.

I can certainly see why any organization that depends on volunteer contributions would want to minimize sticky fingers in their collection baskets, but in my opinion this is one of the most egregious examples of lawyerly overkill that I've ever seen. I'm sure the St. Baldrick's Foundation will do fine without our event and that my little protest doesn't matter much in the grand scheme of things, but it matters to me. For our part, we'll find other worthy causes to support - Lord knows there's no shortage of worthy causes, maybe even some that don't need to verify that we're moral enough before they take our time and money.

I hope those of you who looked forward to participating this year can understand my decision, whether you agree with it or not. As always, I welcome your feedback.