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

TTB Proposes New Rules for Wine Labeling and Advertising

1/9/2019

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 a formality. TTB wants the rules to adequately protect the public while being as fair and unobtrusive as possible to industry members. It is actively seeking comment on many issues in this notice. As members of the industry affected by these rules, winery owners would be well-advised to review TTB’s proposals and provide feedback before the March 26, 2019 deadline.

This article is meant to introduce some of the key issues with which TTB is grappling.

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

Protecting Your Business From Employee Poachers

11/27/2018

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 course...

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

Does Your Wine Require Formula Approval?

9/6/2018

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?

There 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 is with wine formulas; the answer to both questions above is… it depends.

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

Special Events: Identifying Legal Issues - Part 2

7/2/2018

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 the tasting room, which was about half full at the time. Suddenly, the room filled with people in suits and dresses and in walked a bride and groom followed by an entourage of groomsmen, bride’s maids, a photographer, and a videographer. As the owner approached the bridal couple, she noticed two people in the parking lot unloading a wedding cake from a catering truck.

To read the rest of the article on The Grapevine Magazine website, Click Here

Special Events: Identifying Legal Issues - Part 1

5/7/2018

Acres of rolling hills covered in fruit-covered vines are an idyllic setting for large gatherings and special events. But, for wineries, there are a host of legal concerns that must be addressed or they could lose their license or even be subject to criminal prosecution.

ARE YOU ALLOWED TO HAVE THE EVENT?

Whether it is a hosted event that is open to the public or a private event, like a wedding or anniversary party, the threshold question is whether the winery is even permitted to hold the event.

Zoning Laws
Zoning laws vary dramatically, not only state-to-state, but even among cities and counties within a state. Most, however, have some limitation on the number and/or size of special events. Wineries need to know how their jurisdiction defines a “special event” and what restrictions are in place. For example, in Placer County, California, a winery is required to have one parking space for every 2.5 attendees of a promotional event.

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

Grape Purchase Agreements & Smoke Taint

3/10/2018

As I traveled to Sacramento for this year's Unified Wine and Grape Symposium, I began writing this article, intending to focus on key provisions of Grape Purchase Agreements (GPAs) that parties should negotiate. But, upon arrival at the symposium,

I spoke with other conference attendees and it became clear that one thing was on everyone's minds - smoke taint.

Certainly, I had heard about the fires in October, but living on the East Coast, it was difficult to get any specific information about where the fires were located, what vineyards were affected, and the extent of the damage. I heard anecdotal bits of information from friends who live in the area and were reporting on the latest evacuations and there were, of course, some very dramatic videos posted on social media. But, it wasn't until I spoke with grape growers, vintners, négociants, and insurance companies that I began to understand the scope of these fires. Or so I thought.

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

Distributor Agreements: 'Til Death Do Us Part?

1/8/2018

Many early stage wineries market their products via tasting room sales, wine clubs, direct-to-consumer shipments and, to the extent permitted, self-distribution to local restaurants, grocery stores, and wine stores. Eventually, winery growth will necessitate working with a distributor, a relationship not to be entered into lightly.

A distributor becomes an ambassador for the winery’s brand and, once retained, the supplier may have little control over how its wine is marketed. Further, these relationships can be difficult or financially impossible to break once established.

Supplier/distributor relationships are governed by franchise laws in many states. In the absence of franchise laws, the relationship is defined entirely by a distribution agreement between the parties. But, even in franchise states, the distribution agreement can play a critical role, particularly in the termination of the distributor relationship.

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

Wine Labels 201: Protecting Your Design

11/14/2017

In the July/August Issue, The Grapevine published an article by attorney, Lindsey Zahn, entitled “Wine Labels 101: Navigating TTB’s COLA Process.” The article described the information that must be contained on the label as well as how the label gets approved for use.

This article will discuss how to protect the design of the label. Aside from the required information relating to contents, origin, etc., a label contains many creative aspects, including: brand names, logos, pictures, drawings, color schemes, unique label shapes, backgrounds, and fanciful descriptions of the winery and the product. But, in a crowded market, how can those elements be protected against copying by competitors? There are three tools available to wineries to protect their labels: trademarks, trade dress, and copyrights.

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

Where Never is Heard a Disparaging Word ... Until Now?

9/14/2017

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.

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

MATAL v. TAM, Greater Freedom for Trademarks and Beer Labels

9/5/2017

On June 19, 2017, the Supreme Court of the United States issued a landmark trademark ruling in the case of Matal v. Tam. The case dealt with whether or not the US Patent & Trademark Office (PTO) could deny a trademark registration on the basis that the mark in question was deemed derogatory or insulting. While the case has implications for First Amendment jurisprudence generally, it is of specific importance to the craft beer community.

To read the rest of the article on the DC Brewers' Guild blog page... click here.