For those hoping to realize their dream of starting a craft brewery, the number of tasks can be overwhelming and it may be difficult to know where to begin.  Building the right team to help achieve each objective can smooth the path considerably.  One of the first members of that team should be an attorney knowledgeable in the industry.  The information below is not a comprehensive list of everything a brewery needs to do, but is intended to provide a rough estimation of the time and expense required for the major events that may require an attorney, as well as identifying opportunities to save expense by doing some tasks in-house.  These items are listed in a sequential order that may be useful, but is certainly not a requirement.  

​Form Corporate Entity
In most cases, a limited liability company (LLC) is the best structure for a startup brewery, though it is wise to first consult a CPA or tax professional familiar with breweries.  Secretary of State offices often have simple online forms for the Articles of Organization of an LLC that do not require the services of an attorney.  However, some States, such as California, New York, and Delaware, require an LLC to have a signed operating agreement.  As explained below, the operating agreement should be drafted by an attorney and in some cases the attorney may offer a package that includes creation of the operating agreement along with creating and filing the articles of organization.  Though it varies state-to-state, the filing fees for Articles of Organization are typically $100-200 and it generally takes 2-3 weeks for the application to be accepted by the state, though it can sometimes be expedited for an additional fee.

To download a PDF copy of the article, click the link below.

​You’ve secured federal registration for your trademarks and you’ve been building your brand recognition.  Per your trademark attorney’s recommendation, you’ve had quarterly searches conducted to find similar marks.  Lo and behold, a new entry to the market is using your trademark.  Now what?  Stop and take a breath; let the initial surprise or anger settle. There is a lot to consider before taking any action.

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.​

In my mail today, I received the official-looking letter, below.  At first glance, it appears to be from the U.S. Patent and Trademark Office and it claims that my registration for the KaiderLaw® trademark is about to expire unless I pay $1,250.  The letter is NOT from the USPTO.
 
Below, I’ve highlighted the address in the top left corner.  This is not the address of the USPTO.  In fact, it appears to be the address of a Regis office.  In the middle of the letter, I’ve highlighted some other information that is incorrect.  It claims the filing date was May 21, 2013. The filing date for my mark was actually 2 years later.  It claims the registration date was May 3, 2014.  Again, it was actually 2 years later.  It also claims a “Date in location” of May 3, 2016.  There is no such thing as a “date in location.”  Then it claims the renewal date is May 3, 2019.  It’s not, my renewal period is between May 3, 2021 and May 3, 2022.
 
Finally, in the small print at the bottom, it says, “Patent and Trademark Office is a private service company within the intellectual property area that reminds companies when their trademarks are due for the renewal.  Patent and Trademark Office is non-governmental company and is not connected to any of the governmental organizations.”
 
If you receive anything that looks like this letter, please contact your trademark attorney right away and do not send any money.  If you read the fine print, it suggests that by paying them the fee they are demanding, they will then renew your trademark on your behalf.  They may not.  Using my letter as an example, the renewal period for my mark does not begin until 2021 and the USPTO will not accept a renewal application before that date. 

There are many "companies" out there that will send a letter like this; then when you pay them, they will not file anything and a few years later, the trademark becomes abandoned.  By that time, the company has moved to a new location and the "customer" is not only be out the money, but their trademark registration is cancelled.

​If you have any questions, feel free to reach out.
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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.  But, advertising and promotion in the alcohol industry is a messy affair with wildly contradictory rules in different jurisdictions. ​

This article surveys the laws in several states, not to provide a complete picture as to allowable advertising practices in the wine industry; that would be impossible, but to highlight some of the issues and how differently they are addressed in different states.
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