If 6 was 9: Magic Hat and West Sixth Brewing look ready to go to court [Updated]

Updated with West Sixth’s response to Magic Hat at bottom.

The beer world on the internet has been a buzz since yesterday morning. Around 11 am on May 21st West Sixth Brewing, a small craft brewery out of Lexington, posted the following link on their Facebook page and Twitter account: “No More Magic Hat“. Please take a few minutes to go read that, we’ll wait. Ok, everyone back? Great. I’m going forward assuming you’ve read that so if you haven’t, then do so now. That post started off this mini-firestorm of Retweets, Likes, and shares, plus individuals and other craft breweries urging everyone to sign a petition which would be sent to Magic Hat headquarters. In summary, West Sixth is claiming Magic Hat wants them to change their logo, which will put them out of business. There is some merit there; a brand means A LOT. Once you have that recognition built, having to rebuild it could lose you a lot of business. West Sixth also claims multiple times that they “reached out” to Magic Hat and  never heard back.

Magic Hat was initially very quiet, then began deleting negative Facebook comments off their Facebok page, which is always a bad move. Around 10 pm on May 21st Magic Hat posted this link on their Facebook page: Claims Made by West Sixth Brewing Co.: Simply Not True. Please go read that and click on all the various gray-highlighted boxes. They are links to letters between Magic Hat and West Sixth.

Here are the two logos; I flipped West Sixth’s so you can better see what the whole deal is about:

magichat9 westsixth

Personally I can see what the stink is about and feel that Magic Hat does have some very, very small claim. Remember that many of the logos in question don’t have the “West Sixth Brewing Company Lexington, Kentucky” words around it. While the compass/star/dingbat thing and # are very different, they’re in a similar place. And damn do those numbers look identical, especially with the ball on the tail. Looking closely at these two logos I now see that Magic Hat’s 9 has a star/dingbat thing in the middle of the number. Do I think these are identical? No. Do I think they’re damned close and would “cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods” if said consumer had an upside down can of West Sixth? Possibly. But that’s what the jury will be tasked with now.

I want to take a look at some of the things said in each company’s statements. First off Magic Hat claims it was “blindsided” by the social media forces West Sixth gathered. Magic Hat also claims, and proves (something West Sixth does not do) that they attempted to make contact with West Sixth and, in fact, did receive responses from them. So we can see West Sixth’s claims of never hearing back are bull crap, which to me is disappointing.

A claim made by West Sixth is that Magic Hat wants “all their profits up until this point”. By looking at the letters provided by Magic Hat we can see that it’s not the case. Magic Hat wanted “an accounting of all sales made … so an appropriate royalty could be determined.” West Sixth also say that their logo includes “West Sixth Brewing Company”, which as Magic Hat points out, is not always the case.

Magic Hat offers to allow West Sixth to continue using the number 6 if they remove the star (which they call a “dingbat”) and always include the words “West Sixth Brewing”. Personally this seems like a good option to me as everyone would be happy and West Sixth would be reinforcing it’s brand name via the logo and the words. See below picture from Magic Hat’s provided letters

5-22-2013 8-15-11 AM

West Sixth then responds, agreeing to most of those terms and trying to get clarity on a few of them. Magic Hat responds saying they can’t provide clarity until they see West Sixth’s new logo that will replace the dingbat with a compass. More legal banter follows and the agreement basically falls apart due to the cost to West Sixth to replace all the logos and the two sides being unable to agree on what exactly to change.

That last letter was February 27th; no further contact between the two parties is provided so we are left to assume none occurred. Or to assume that one party is with holding it to make themselves appear better. Then on May 16th Magic Hat filed a lawsuit (linkage). I really can’t make too much sense of this through all the legal mumbo jumbo. Those letters sent back and forth were hard enough. But, it’s clear Magic Hat wasn’t happy with the proposed settlements and sued West Sixth over the logo.

However, I can read and do LOVE this: “Plaintiff Magic Hat is one of the largest and most well-recognized craft brewers in the United States.” That’s some funny stuff. You want me to believe Magic Hat is more well known then Stone, Dogfish Head, or Sam Adams?? HAH!

My opinion on all this is that it’s damned fracking nonsense. I really view the issue as the U.S. Patent Office being stupid for allowing a patent trademark on “#9”. I mean shit, seriously? They patented  trademarked #9? And It was approved!

Really to me, in the end, what matters here is beer! I tried Magic Hat’s variety pack last year (my review) and was very unimpressed and didn’t like most of it. I have not yet had any West Sixth, but from what I’m told their IPA should be widely available in the Cincinnati area. I will not be able to try any this week but getting some and reviewing it will be my top priority.

Now, after having read far too much legal-ease it’s time for some music. As soon as I thought to write this post, Jimi Hendrix’s song “If 6 was 9” popped into my head as the perfect title for this post. Turns out the lyrics fit my view point on this lawsuit pretty damn well too.

Now, if 6 turned up to be 9,
I don’t mind, I don’t mind.
If all the hippies cut off their hair,
I don’t care, I don’t care.
Dig, ‘cos I got my own world to live through
And I ain’t gonna come near you.

Another song also kept running through my brain and if you haven’t read the number 9 enough times already then digg this masterpiece of craziness

Correction: As many people have pointed out I misspoke and this is not a patent issue, it is a trademark issue. I have corrected the mistakes, my apologies for this and my thanks for pointing it out.

Update: West Sixth has posted a response to Magic Hat’s post from last night. West Sixth’s new post can be read here. In short they accuse Magic Hat of ignoring them via letter, phone, and email and accuse Magic Hat of preferring to communicate over Facebook. West Sixth calls Magic Hat out on various claims they made and proposes to settle based on the terms I mentioned before (that is using “West Sixth Brewing” in all logos and changing the compass). West Sixth then goes on to show some of the proposed changes to the logo.



Filed under Opinion

28 responses to “If 6 was 9: Magic Hat and West Sixth Brewing look ready to go to court [Updated]

  1. Great post. I was trying to catch up with this whole story yesterday when the back and forth was bouncing around Twitter.

    This strikes me as a symptom of an overly litigious society more than a legitimate complaint over branding. When we live in a world where Samsung and Apple spend BILLIONS of dollars fighting over rounded corners and icon placement on pretty much identical devices, this sort of petty squabbling is bound to crop up in other industries.

    The better question is: is the West Sixth beer any good? Magic Hat #9 and a few others have found a place in my fridge because they’re well brewed and refreshingly different (usually). If West Sixth is putting out good beer, hopefully that’s what they’ll be judged on, not this whole silly marketing mess.

    • Tom Aguero

      Thanks for the great comment, I wish there was a like button for comments.

      I agree completely on the over litigious society bit. I’m in IT by day and almost added some comments about Apple’s rounded corners but didn’t want to offend any Apple zealots, plus I try to keep the blog beer focused. I think the patenting of “#9” clearly shows the flaws in our patent system.

      • I’m IT by day, too!

        But I agree. There is a legit, “yea, that logo is strikingly similar” issue here, but I really think it could have (and probably should have) been resolved without bringing the lawyers in. I’ll be happy when our legal system is changed significantly enough to put patent law deep, deep into the history books under, “shit I can’t believe we used to actually worry about.”

        • Tom Aguero

          If you want to hear about a gov’t law like patents that will really drive you nuts look into copyright term extensions.

      • John Anderson

        The problem, Tom, is that you do not seem to know the difference between a trademark and a patent. I agree that you should keep the blog beer-focused, and stay out of intellectual property law (which, since you work in IT, you SHOULD know more about than you apparently do).

        • I’m not sure what this adds to the conversation. I’d guess nothing. It’s not like he made a judgement on what was going to happen or anything. He just reported what happened. But it is pretty fun to just go run your mouth on blogs for no reason, isn’t it?

        • John Anderson

          @joshosbo It adds a correction of Tom’s repeated error, if nothing else.

        • Tom Aguero

          John, thanks for pointing that out. I was concentrating on what each side was saying and simply saw the “US patent office” bit. I have now corrected the references to patents and made a statement at the bottom of the post.

          However, Josh has a point and you could’ve phrased your statement in a more helpful manor to add more to the conversation.

  2. I’ve had their IPA and enjoyed it. It’s not one of the best IPAs I’ve ever had, but it’s far better than average.

  3. Minor, minor, minor quibble that doesn’t change a bit of the meaning you’re communicating: The issue here isn’t a patent. It’s a trademark. It’s quite a different thing with a lot different law. It doesn’t change your point, just a matter of accuracy.

    I’m in the middle of writing my own piece, and I can guarantee I’m sending folks over here to get your take. Great job with the description of the back and forth. That stuff makes my eyes bleed.

  4. I felt bad for West Sixth last night until I read documents Magic Hat released. It may be due to their internal set-up as a larger company, but it was clear Magic Hat had an emergency plan in place and did well by their statement and releasing the communications.

    That said, I’m sure people can still see either side as bullies.

  5. Matt

    Just to clarify a point, Magic Hat has a *trademark* not a patent.

    This whole thing does seem kind of silly and as I was reading the letters, I was envisioning the thousands of dollars being wasted on what is basically – will anyone be confused that the West 6th beer is being made by Magic Hat? I know I would never confuse it because West 6th is good (their IPA anyway) and Magic Hat (their #9 anyway) is terrible.

    I hope that West 6th can make it out of this without losing too much money to the legal system because I look forward to trying all their beers.

    • Tom Aguero

      Matt, thank you for the comment pointing the trademark vs patent issue out. I have corrected it in the post for future readers.

  6. Hark

    I still want to know what Magi Chat is 🙂

  7. Dusty

    West 6th should drop the star and always include the words/brewery name around the logo from this point on.
    Magic Hat should then drop all suits and claims to any royalties from past sales.
    There, problem solved. Not real hard.
    If I were a lawyer I could probably have drawn that out over months & months and charged 6 figures….

  8. Excellent post! I too was trying to piece together what the situation was yesterday so thank you so much for laying it all out clearly and fairly. I have actually been to the West 6th tap room (http://www.charlietonic.com/2013/03/08/bottoms-up-4-west-sixth/) but I’ve never had Magic Hat so I will leave that side of the debate to the beer nerds. Dusty nailed it as far as what should probably be happening from here on out but sadly, that doesn’t seem very likely at this point.

  9. Pingback: Hoperatives - Don’t Feed the Trolls: The West Sixth – Magic Hat Thing

  10. Reblogged this on Bavarian Air Force and commented:
    This is one of the best summaries we’ve yet seen on the 6/9 controversy between West Sixth Brewing and Magic Hat.

  11. April

    I think what West 6th said, was that they hadn’t heard from Magic Hat in 3 months and then there was a lawsuit, not that they had never gotten a response (I could be wrong though). The last letter was dated in Feb. and they haven’t heard from them since, so their statement that they tried to resolve it, but heard nothing more in 3 months until this lawsuit is actually true.

  12. I believe that West Sixth was trying to act in good faith without being totally shafted, based on the conversation that I have had with one of the owners. They agreed to many of the adjustments that MH asked for and they provided their own documents to prove that. Unfortunately for MH it was a “my way or the highway” situation.
    What people are forgetting is that this is not Magic Hat’s first round in the rodeo. In 2010 they went after Georgetown Brewery over their 9 LB Porter, which was brewed for a local pub The ( LB Hammer. MH wanted to take ownership of the brand 9 LB Porter and lease it back to Georgetown.

    Maybe MH should be more concerned about the quality of their beer and less about who has a number in a circle on their logo. (Watch out 3 Sheeps!)
    As a CRAFT brewer, which W6 is and MH is NOT, I wouldn’t want my quality product associated/confused with MH’s inferior one and I sure wouldn’t go about trying to do that on purpose!

  13. Mark T

    Seems kind of silly to turn the one logo be upside-down and *then* declare a similarity. If the logo is taken as intended, right side up, it is much less similar.

  14. John Galt

    But it doesn’t matter what you or the West 6th Brewery or their customers think. It only matters what the court will decide. The fact that you don’t understand trademark law (as evidenced by your “I mean shit, seriously? They [patented] trademarked #9? And It was approved” comment) is your fault, not Magic Hat’s fault. They didn’t trademark the numeral “9”. They trademarked the representation of their logo, incorporating the numeral “9”, the dingbat, and the swirls. It’s the dingbat plus the fact that West 6th uses a numeral that can easily be mistaken for a “9” (yes, beer bottles are often upside-down) that is contentious. Personally, I don’t think there’s confusion with the logos except for the use of the dingbat. But, again, it doesn’t matter what I think. It matters what the court decides.

    Your blog is entitled “Queen City Drinks”. You can’t just go appropriating Queen City logos and using them. (See http://www.sterlingflatwarefashions.com/images/QueenCity_REP.jpg It’s a nice logo! But don’t use it!) A mark is an asset. It’s intellectual property and it has value. Magic Hat is protecting its asset in exactly the same way they would do if a big truck from West 6th showed up at Magic Hat’s brewery and started stealing all of their brewing equipment. Different law. Same concept.

  15. Amanda

    It should be pointed out that Magic Hat really did ask for all profits West 6th had incurred up to that point, just not in the letters. It’s in the lawsuit, under the section Prayer for Relief. Magic Hat asks for “…all profits realized by West Sixth as a result of its use of the 6 Marks…” Which is prettyy much bullshit if you ask me.

  16. cab647

    “That’s some funny stuff. You want me to believe Magic Hat is more well known then Stone, Dogfish Head, or Sam Adams?? HAH!”

    Your research has really let you down here. Magic Hat was a bigger brewery than Stone AND Dogfish Head in 2009. http://www.brewersassociation.org/pages/media/press-releases/show?title=brewers-association-releases-2009-top-50-breweries-list

    I used ’09 because Magic Hat was bought up after that and the comparison became impossible based on the Brewers Association stats. I’m really shocked that Magic Hat would NOT be considered one of the major players in the craft business. They are behind only Sam and Harpoon in notoriety in New England, and I’ve seen #9 on tap as far south as Nashville.

    if you want a sense of how well Magic Hat is respected, check out how Jim Koch wanted Magic Hat guys in his fold. http://blogs.wickedlocal.com/massmarkets/2012/03/03/boston-beer-teams-up-with-magic-hat-co-founder-to-brew-some-new-magic/#axzz2UAi4j2N0

  17. Grab a West Sixth t-shirt (and a couple of coasters) while you still can!

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