A Shot Across the Bow: Jump Ship Raise Legal Proceedings Against BrewDog

Background of the dispute

Jump Ship Brewing has instigated legal proceedings against BrewDog in the Intellectual Property Enterprise Court in London, the latest trade mark altercation involving the Scottish beer behemoth.

Jump Ship Brewing, an Edinburgh based brewery specialising in alcohol free beer launched Shore Leave – a sour beer - in 2022. After becoming aware of BrewDog’s intention to launch their own beer named Shore Leave, which appeared to be marketed with the tagline, “it’s time to jump ship”, Jump Ship Brewing decided to take action. To complicate matters further, BrewDog registered a trade mark for the name Shore Leave in June 2023. Images of the can and beer design first emerged in posts by BrewDog’s founder around eight months ago.

Passing off

It is understood that Jump Ship Brewing are seeking an injunction to stop BrewDog from selling their Shore Leave beer. While we have not seen the full details of the claim, in absence of a trade mark for ‘Shore Leave’, Jump Ship Brewing would likely have to rely on a claim under the common law of ‘passing off’. Jump Ship Brewing claim to have invested time and money in developing their Shore Leave beers, which includes investment into the branding, packaging and distribution of this beer. This information could be used to demonstrate that they have ‘goodwill’ in the name, a key requirement for passing off. They would then need to show that BrewDog have misrepresented that goodwill as their own: that the public have been deceived into drawing a commercial connection between the two products. No doubt the aforementioned marketing materials would be used for this purpose. If Jump Ship were successful in proving those two aspects of the law, a court would assume that they had suffered damage, unless BrewDog could prove otherwise. A successful claim under the law of passing off could not only allow Jump Ship to obtain an injunction over BrewDog, but could also allow them to invalidate BrewDog’s trade mark under s.47 of the Trade Marks Act 1994.

BrewDog claim not to have been aware of Jump Ship. They have issued a statement expressing their surprise and disappointment in the action, given their status as the registered owner of the Shore Leave trade mark. BrewDog have offered to remove ‘jump ship’ from any marketing materials, which is perhaps not surprising given Jump Ship’s trade mark in that name. They have also offered a collaboration with Jump Ship in settlement. This is something they have done before with a Birmingham based pub, Lone Wolf, whom they raised proceedings against in relation to their own Lone Wolf spirits trade mark. Jump Ship are understood to have refused this offer.

The benefits of a registered trade mark

Hindsight is 20/20 of course, but it is worth noting that had Jump Ship registered ‘Shore Leave’ as a trade mark, they would have a stronger case against BrewDog. In a case such as this, where the sign and the services are identical, infringement is deemed as automatic. For that reason, the existence of a trade mark itself on the register alone can act as a deterrent to potential infringers.

Any mark or sign can be included within the trade mark register if it enables people to determine the clear and precise subject matter of the protection which requires to be afforded. The trade mark must also be sufficiently distinctive so as to be differentiated from other marks or signs. These features should allow consumers to be directed to the origin of the product.

The protection of a trade mark lasts for 10 years and can be indefinitely renewed every ten years, provided the trade mark remains in use.

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Ensuring that your branding is protected could not be more essential in this day and age of influential marketing and the power of social media. If a company can get their branding and marketing on point, then they are more likely to be memorable and successful. After all, it is the nature of distinctive branding that can instil confidence in the product and/or company by consumers and the wider market.

As demonstrated above, a strong trade mark may avoid the need to raise an expensive and time-consuming court action.

If you need advice on anything related to IP then please do get in touch with our team who would be happy to assist you.