Archive: Legal

Where Never is Heard a Disparaging Word … Until Now?

With apologies to Dr. Brewster Higley for changing the words to what would become the iconic folk song “Home on the Range,” a recent U.S. Supreme Court decision has opened the door to registration of a category of trademarks that would previously have been refused as “disparaging.” While the wine industry has typically not pushed the boundaries of disparaging marks, this case has implications for marks that are considered “scandalous” or “immoral,” as well. Further, this decision could dramatically affect the way that the Alcohol and Tobacco Tax and Trade Bureau (TTB) reviews Certificate of Label Approval (COLA) applications. In March 2010, Simon Sciao Tam, frontman of the Asian-American rock band, “The Slants,” filed a trademark application for the band’s […]

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Wine Labels 101: Navigating TTB’s COLA Process

The label approval process is unique to the alcohol beverage industry; most traditional foods (such as cookies, pasta, and sugar) are not subject to government pre-approval before being sold at market. Indeed, well before a wine reaches a store’s shelves or the hands of a consumer, the federal—and possibly even the state—government played a significant role in what must, what can, and what cannot appear on a wine label. The other unique aspect about wine labels—in comparison to distilled spirit or malt beverage labels—is that while most wine labels are subject to the labeling jurisdiction of the Alcohol and Tobacco Tax and Trade Bureau (TTB), wines under 7% alcohol by volume fall in the labeling jurisdiction of the Food and […]

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INTERNATIONAL WINE TRADEMARKS: GROWING YOUR WINE BRANDS BEYOND THE BORDER

International demand for American wine continues to grow, with the Wine Institute reporting that wine exports revenue grew 7.6% between 2014 and 2015. Any winery considering crossing the border should be aware that their trademark rights are likely limited to the country or countries of registration and use. So, an American winery that has been proactive about securing rights to a wine name in the US will not have a claim to the name in Canada, or elsewhere outside the US. A Quick Note on International Wine Law Section 2(a) of the Trademark Act prohibits the registration of certain “geographical indications” in connection with wine (and spirits, but not beer), unless the wine actually originates in the related geographic place. […]

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Choosing the Right Trademark for Your Wine

The importance of choosing a high quality trademark for your wine cannot be overstated. At its core, a wine trademark is a means to quickly convey important information about a given wine. It’s shorthand. It says, “this wine originates from this producer.” And that’s important, because consumers who are inundated with a plethora of wines yearn for a quick, easy way to associate a producer with a product. Having a good trademark allows consumers to easily identify your product and distinguish it from everyone else’s. This way, both you and your consumers are better off. Trademark Quality So what constitutes a “good” trademark? One of the [more important] things that I learned in college was a bit of wisdom imparted […]

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The Vineyard Labor Crisis

Part I – Factors Contributing to the Worker Shortage Having enough help in the vineyard is the hottest topic for owners and managers in 2016, according to the results of the Vineyard Economics Survey conducted by the Wine Industry Symposium Group. Over half of survey respondents said labor was their top concern, followed by pests, water availability, and the political impact of the upcoming presidential election. There is good reason for concern. Overall in the U.S., a shortage of people to tend the fields is reducing fruit and vegetable production by 9.5%, or $3.1 billion, a year, according to a recently published analysis of government data by the Partnership for a New American Economy, a nonpartisan group that supports a […]

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The Truth Behind American Viticultural Areas

What are American Viticultural Areas (AVAs)? Are they appellations? AVAs are types of appellations—but not all appellations are AVAs. For example, California and Texas and Napa County and Sonoma County are considered to be an appellation of origin with respect to wine labeling. But they are not AVAs. Both appellations and AVAs provide a significant amount of information about a wine. When used on a label, the wine tells a consumer that (at minimum) the majority of the grapes used in that wine were grown in the labeled appellation or AVA. However, appellations and AVAs have some differences. Appellations are generally defined by political boundaries, such as by the name of a county, state, or country, whereas AVAs are defined […]

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THE GUIDANCE YOU CAN’T SKIP: Shelf Plans, Shelf Schematics and Tied House Laws

On February 11, 2016, the TTB issued a general guidance concerning promotional activities commonly associated with category management programs and looked at such practices with respect to the federal tied house laws. The agency said its guidance was issued as a result of industry requests for clarification with respect to shelf plans and schematics and insight on what the agency considers to be permissible. For more information, see T TB Ruling 2016-1, The Shelf Plan and Shelf Schematic Exception to the “Tied House” Prohibition, and Activities Outside Such Exception. Background Very generally speaking, tied house laws are designed to prevent a supplier from gaining too much control over or domination of a retailer, as well as to prohibit supplier acts […]

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What’s in a Name? The Importance of Grape Varieties in American Wines

Using a grape variety on an American wine label is not mandatory, but many winemakers choose to do so for several reasons, such as perception of quality to the consumer. Using or naming the variety on the wine label may also convey a better story about what is in the bottle. There are a number of federal regulations that govern grape varieties, ranging from the percentage of grapes that must be used in a wine to what specific varieties can be used on an American wine label. This article discusses some of the regulatory concerns on using grape varieties in American wines. TTB regulations require a wine label have a class/type designation, including (but not limited to) “Red Wine,” “Red […]

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Owning a Wine Brand: Alternatives to Investing in a Traditional Winery Model and Their Legal Implications

Many people who love wine often dream about entering the wine business: owning acres of rolling hills, planting vines and celebrating every autumn’s blissful harvest season, and maybe adding a dog or two. But the romanticism of entering the wine business can be far-fetched, hard work, and extremely costly. For many, the dream may be offset by the monetary investment. Absent substantial capital to invest in land, cellar equipment, refrigeration equipment, vines, storage, labor, multiple licenses and permits, and more, taking the jump to start a winery can be extremely risky and may take several years to produce a return on investment. For those who cannot or may not be able to take the step to open a full-fledged winery, […]

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TRUMP’S CAMPAIGN SLOGAN ‘MAKE AMERICA GREAT AGAIN’ IS BIG BUSINESS

In 2012, Donald Trump filed a federal trademark application on his campaign slogan: “Make America Great Again.” This July the US Patent & Trademark Office (PTO) granted him a registration. Trump’s attorneys recently sent a cease and desist letter to the owners of the CafePress.com web site for selling merchandise having this slogan. A deeper look at Trump’s trademark application shows that he filed it in November 19, 2012 on “Political action committee services, namely, promoting public awareness of political issues” and on “Fundraising in the field of politics.” You might say, judging by the date of his trademark application, he had a lot of foresight. However, he actually did not have enough foresight. April 2015 is when he first […]

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