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

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).

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.