Archive: Legal

How Does Your Safety Program “Pair” With Your Workers?

With the intensity of the wine season gearing up and peak times just around the corner, how prepared are you to protect the health and safety of your workers? Protecting your employees is crucial to attaining your orchard and vineyard goals and having a successful operation. Having a solid and functioning safety plan in force results in better productivity, enables your workers to thrive and contribute to the performance of your business.  A good safety program is a win –win for everyone! Regardless of the size of your operation, it is your responsibility as an employer, to have a safety program in place.  Depending on the size of your operation, your safety program may be informal or it may need […]

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Plant Patents in the Wine Industry

When most people think of patents, they think of new machines, new medicines, or improved manufacturing processes.  These inventions are protected by “utility patents.”  Some people may also be familiar with “design patents,” which protect a novel ornamental design, such as the front grill of a luxury car.  But, there is a third class of patents with which most people are unfamiliar, “plant patents.”  As the name suggests, plant patents protect new plant varieties, such as a new strain of wine grape vine. Not all plants are eligible for patent protection, however.  United States Code, Title 35, Section 161 provides that: “[w]hoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, […]

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Did You Patent that Copyrighted Trademark? Um, No.

  Having worked in intellectual property for nearly 20 years, I often take for granted that people have a working knowledge of the different types of IP rights.  That misconception is frequently revealed when a friend or family member (with whom I’ve had many conversations about IP) asks, “didn’t you patent that company’s logo?”  “Well, no,” I explain, “but, I did get it federally registered as a trademark.”  Taking a step back, I realize that it can be quite confusing.  So, this article is meant to introduce the four main types of intellectual property and how they apply to the wine industry. Patents Protect Ideas – Sort Of Most people have a general understanding that a patent protects an “invention” […]

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Navigating the Minefield of Wine Advertising and Promotion

  One of the take-home messages from the State of the Industry address at this year’s Unified Wine and Grape Symposium was that per capita alcohol consumption is flat.  This means that the various sectors of the alcohol industry can only increase sales by re-dividing the pie in their favor.  Although wine and spirits are making headway at the expense of beer, new players in the space, such as hard seltzers and pre-mixed cocktails are carving out their own slices. One of the areas where wine is losing market share is with millennials, who are adopting wine as their drink of choice at a slower pace than prior generations.  Winning in this sector, and others, will require strong marketing efforts.  […]

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TTB Proposes New Rules for Wine Labeling & Advertising

On November 26, 2018, the TTB published in the Federal Register a notice of proposed rulemaking, titled, Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages (83 Fed. Reg. 60,609).  The purpose of these proposed rules is to “simplify and clarify regulatory standards, incorporate guidance documents and current policy into the regulations, and reduce the regulatory burden on industry members where possible.” When the federal government wants to change rules Americans are subject to, they must first publish the proposed rules and provide a period of time for the public to comment and make suggestions.  The government agency is required to review and consider all suggestions before implementing a final rule. This process is not […]

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Protecting Your Business From Employee Poachers

You’ve been in business for several years and have a dozen hard-working, dedicated employees working for your company, or so you think.  Out of the blue, a new competitor enters the market and the next thing you know, all 12 of your employees have jumped ship to join the new firm.  With them, they have taken company records and customer lists.  What do you do?  Do you have any legal recourse against the poaching company? Against your former employees?  How could you have prevented this? Can a Competitor “Poach” Your Employees? In most states, yes.  Many people are surprised to learn that, generally, poaching is a perfectly valid and legal way to find new employees. There are exceptions and limitations, of […]

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Tariffs, Tariffs, and More Tariffs

Toward the end of this week, take a minute to add up and total the amount of US tariffs imposed on Chinese goods imported into the US. You can glean this data from online aggregated digital news, television news, or from US Government pronouncements about Trump tariffs. I would be very surprised if the number does not exceed hundreds of billions of US dollars encompassing about half of all Chinese manufactured goods entering the US. The public comment period for most US-China tariffs to be imposed to date ended this past Friday so that such tariffs can be imposed by the US Government and will either be at 25% or 10% depending on the Chinese manufactured product. China and the US, up […]

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Does Your Wine Require Formula Approval

  The Alcohol and Tobacco Tax and Trade Bureau (TTB) has the authority to regulate the production and importation of wine in the United States.  In some cases, the TTB requires approval of the formula before a manufacturer may make certain wines.  The rules relating to whether a formula is required, however, can be confusing.  For example, is a formula required for a wine made from both apple and raspberry?  What about a dry-hopped mead? ere is a well-known joke among lawyers:   A law school professor said to a graduating class, “Three years ago, when asked a legal question, you could answer, in all honesty, ‘I don’t know.’  Now you can say with great authority, ‘It depends.” Thus it […]

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Special Events: Identifying Legal Issues – Part 2

Special events are a valuable source of supplemental income for wineries, but they also present a variety of legal concerns, which if not properly addressed may have significant consequences. In the first part of this article, we discussed limitations on holding special events as well as the winery’s responsibilities at such events. In this second part, we will discuss various types of events and the specific issues they raise. Weddings and Family Gatherings Vineyards provide an attractive backdrop for weddings, family reunions, and company retreats. Many wineries also have indoor event space perfect for receptions and other gatherings. While visiting a winery recently, I spoke with the owner who told me the following story. One Saturday afternoon, she was in […]

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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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