If you operate or soon plan to operate a startup brewery and are considering where to allocate your limited legal dollars, there are four primary areas where we recommend you focus these financial resources. Failing to do so may, at worst, financially ruin the business or, at best, create an expensive distraction. That result can most likely be avoided if you seek input from a qualified legal professional at the outset.
Intellectual Property
We often get asked, do I have to trademark my name or my logo? The short answer is no. Should you? Most likely. It is hard to know today what your growth curve will look like three years, five years, or seven years out. If you spend the time, energy, and resources to develop a unique and memorable name, logo, and brand, but fail to trademark it, you run the risk of having to abandon it as you grow. If someone federally registers a similar name or mark in a market that you want to enter, you could face infringement liability should someone already own the same or similar mark or name. Registering your name and mark in the appropriate service categories today is critical to excluding others from using similar names or marks in the future.
Entity Selection and Formation
While you do not need an attorney to help you prepare and file articles of incorporation with the Secretary of State in your home state, you should seek legal counsel to prepare either the shareholder agreement if your brewery is a corporation or the operating agreement if you elect to form your brewery as a limited liability company (LLC). Failing to do so could result in trouble if you need to remove a business partner who is no longer a good fit for the company and ultimately land you in court as you try to unwind your corporate relationship. At that point, a judge or jury, rather that you and your partners, will decide the fate of your business.