The Law Offices of Brian D. Kaider, LLC - Blog

Reflections from One Year in Operation

4/10/2020

I met Christian Layke in April 2016, when he was still the head brewer at the Rockville, Maryland location of Gordon Biersch. Like many others I had spoken to before, and since, he wanted to open his own brewery. But, he wasn't a homebrewer with romantic ideas of going pro with a 5 barrel system and a shoestring budget. He had many years of education and experience in brewing (in addition to being a homebrewer) and had grandiose ideas of opening a full production brewery with a world-class taproom and launching immediately into distribution. I was skeptical...at first. I quickly came to realize that Christian had already developed a clear vision of what he wanted to build and had concrete plans to get there.

Fast forward to March 2020. Christian and his business partner, Brett Robison, just celebrated the first anniversary of opening Silver Branch Brewing Company in Silver Spring, Maryland. I sat down with them recently to reflect on the legal lessons they had learned in the three years leading up to their opening.

To read the rest of the article on the Beverage Master website, click here or see our Articles page.

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Distribution Agreements: Negotiate Your "PreNup" Carefully

2/10/2020

Starting a brewery requires learning a lot of new skills and practices that have nothing to do with making great beer. One of the most confusing and frustrating is the issue of distribution. If their state allows, most new breweries initially distribute their own products and, if the brewery is content to be relatively local, that might never change. But, in many cases, brewery growth necessitates working with a distributor. This is not a relationship to be entered into lightly. A distributor becomes an ambassador for the brewery's brand and, once retained, the supplier may have little control over how its beer is marketed. Further, these relationships can be difficult or financially impossible to break once established.

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Anatomy of a Trademark Case

1/14/2020

In earlier articles, I have discussed the benefits of federal registration of trademarks, how they differ from patents and copyrighted materials, and how far you should go to protect your marks. But, when someone decides to take the ultimate step to initiate litigation, I find that they often have little understanding of the process, the timelines, the costs, and the burdens involved. This article is meant to give a high-level view of what a litigation entails, either at the U.S. Patent and Trademark Office or in federal court.

To read the rest of the article on The Grapevine Magazine website, click here.

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Herbicide Drift: A Common Problem Affecting Vineyards Worldwide

11/15/2019

By: Judit Monis, Ph.D. and Brian D. Kaider, Esq.

When damage caused by an herbicide is noticed in the vineyard, growers must act quickly to determine the injury's cause. In all instances, damage must be documented with photos. n addition, physical samples must be submitted to a lab to determine which pesticide is the culprit of the injury. Since there are many different possible chemicals that can cause similar symptoms, the grower needs to have some knowledge as to what chemical is suspected as the laboratory needs to perform specific tests to confirm the presence. A common problem is that chemicals can move a long distance, hence not always easy to determine where the drift originated. However, if the grower, knows the origin of the herbicide (saw spraying activity in a nearby farm), s/he could attempt to ask the farmer to follow label directions to avoid drift or to use a less volatile product. If the activity continues in spite of the request, the only viable solution may be to take legal action against the perpetrators.

To read the rest of the article on The Grapevine Magazine website, click here.

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Enforcing Your Trademarks: How Far Should You Go?

9/12/2019

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.

Take Stock of the Situation

First, take a look at your own trademark. Is it the name of your winery or of one of your products? Is it a national brand or one that is distributed in a small geographic area? In what classes of goods and services is it registered (e.g., class 033 for wine, class 040 for “custom production of wine for others,” etc.)?

Then look at the competitor’s mark. Is the mark identical to yours or similar? How similar? Is it broadly distributed? Is it used for the same goods and services as your mark? If not, how similar are the goods and services? Are your products marketed through the same trade channels? Are consumers likely to encounter both your products and theirs? Have they attempted to register their trademark and, if so, where are they in that process?

To read the rest of the article on The Grapevine Magazine website, click here.

Plant Patents in the Wine Industry

7/12/2019

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, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefore…”

There are some key words in that statute, most importantly, “asexually reproduces.” Asexually propagated plants are not grown from seeds, but by rooting of cuttings, layering, budding, grafting, inarching, etc. Plants capable of sexual reproduction are not excluded from patent eligibility if they are also capable of being reproduced asexually. “Tuber propagated plants” are those that are grown from short, thickened portions of an underground branch, such as the Irish potato or the Jerusalem artichoke. The policy reason for excluding these asexually produced plants is that they are propagated by the same part of the plant that is sold as food.

To read the rest of the article on The Grapevine Magazine website, click here.

Did You Patent That Copyrighted Trademark? Um, No.

6/3/2019

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” or an idea. In a very general sense, that’s true. But, even though the Congressional authority to grant patent rights comes directly from the U.S. Constitution (Article 1, Section 8, Clause 8), exactly what is patentable is the subject of tremendous confusion among the U.S. population, examiners at the U.S. Patent and Trademark Office, lawyers, and even judges; sometimes requiring clarification from the U.S. Supreme Court. The purpose behind the grant of a patent is to encourage innovation by granting exclusive rights to one’s discoveries for a limited time. In other words, it gives the patent holder a short-term (20 years from the date of filing) monopoly on his invention. Generally, new machines, chemicals, electronics, methods of production, and in some cases, methods of doing business, are eligible for patent protection

To read the rest of the article on The Grapevine Magazine website, click here.

Beware of Fraudulent Trademark Renewal Scams

5/13/2019

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.

Navigating the Minefield of Wine Advertising and Promotion

4/5/2019

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. 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.

To read the rest of the article on The Grapevine Magazine website, click here.

CONGRATULATIONS to Silver Branch Brewing Co!!

2/25/2019

I am thrilled to congratulate my client, Silver Branch Brewing Company, on their official opening today!

I first met Christian Layke almost three years ago, while he was still the head brewer at Gordon Biersch in Rockville, MD. At that first meeting, I knew immediately that this was going to be a very different brewery client. His dreams were huge and anyone else wanting to take on the scale of project he was describing, I would have thought them crazy. Not Christian. He was aiming high, but something told me he could hit his target. Later, when I met his business partner, Brett Robison, who was the General Manager at Republic in Tacoma Park, I was certain. These guys were the real deal.

Together, we worked through several stressful trademark issues, a very thorough operating agreement, and a long lease negotiation. But, that was just the tip of the iceberg of what these guys had to go through to get their doors open. They have been working non-stop and what was a gleam in Christian's eye three years ago is now a reality.

My wife and I had the pleasure of attending the Founder's and Investors party this past weekend and the place is fantastic. It's open and inviting with something for everyone. Of course, Christian is well-known for his outstanding beer, but they also have a full bar and will be open for gourmet coffee in the mornings. There are different areas of the brewery with high-top tables, picnic tables, and a more coffee-house type area. There are corn-hole boards and a foosball table with a big screen TV, but it's not a "sports bar."

The focus of the brewery is "gemütlichkeit," the German word for the sense of camaraderie, coziness, and a sense of belonging one gets when enjoying time with good friends. They hit that goal right in the bullseye.

3he grand opening is Sunday, March 3, 2019. I encourage everyone to come enjoy this amazing new brewery in Silver Spring at 8401 Colesville Road (right across from the Silver Spring Metro station).