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

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.

BA's "Independent Craft" Label Does Not Require New COLA Approval

6/27/2017

by Brian D. Kaider (KaiderLaw) and Gregory Parnas (DC BeverageLaw)

With the many acquisitions of craft breweries by Anheuser-Busch InBev and other large conglomerates, it is becoming increasingly difficult to determine which bottles on the shelves are truly "craft" in the sense of being small, independently owned brewers of high-quality beer.

Today, the Brewers Association announced the availability of a new seal to identify "Certified Independent Craft" beer.

The inverted bottle, symbolic of craft breweries turning the beer industry upside down, is meant to "give beer lovers an easy way to identify true small and independent craft brewers, something they have indicated is important to them."

This mark is available to use free of charge to any brewery that meets three criteria:

They must hold a valid TTB Brewer's Notice
They must meet the BA's definition of a "Craft Brewer"
They must sign a licensing agreement

The Brewers Association claims, and we have independently verified, that use of this new seal will not require a revised Certificate of Label Approval from the TTB, so long as the seal is the only substantive change.

The Brewers Association is correctly using the "TM" symbol next to their mark and presumably will file for registration of the seal as a "collective mark," which will further enhance its ability to limit its use to only members of the BA (i.e., independent craft brewers). As of this writing, no application appears on the U.S. Patent and Trademark Office website, but applications take some time to upload into the USPTO database.

As craft beverage attorneys, we strongly encourage all independent craft brewers to license and use this free symbol to distinguish their fine products from those of "faux craft."

The Supreme Court Says the Trademark Office Can’t Reject “Offensive” Marks

6/19/2017

In January 2016, I wrote a blog post, called “Can you Now Register Raunchy or Offensive Trademarks? Maybe.” At the time, the U.S. Court of Appeals for the Federal Circuit had ruled in a case brought by Simon Shiao Tam that the disparagement clause of the Lanham Act was unconstitutional and the USPTO violated Mr. Tam’s First Amendment rights by denying the trademark application for his band, “The Slants.”

The Supreme Court accepted the appeal of the Tam case and unanimously agreed that the disparagement clause is unconstitutional viewpoint discrimination. To read the opinion, click here. The underlying basis for its decision was that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

“[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” - Supreme Court of the United States

In reaching its decision, the Court did not address whether or not Tam intended the mark to be disparaging (he says he wants to “reclaim” the term which has been used in a disparaging manner against him and others of Asian descent). Rather, the Court said, “[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” (emphasis added)

This is an incredibly broad-reaching decision that will affect the outcome of many other disputes, most notably the cancellation of the trademarks for the Washington DC football team, the Redskins.

It should also unleash a logjam at the Trademark Office. In light of the Supreme Court’s review of the Tam case, the Commissioner of Trademarks issued an informal directive to trademark examiners, indicating that applications for marks that might be considered disparaging should be suspended, pending the Supreme Court’s decision in the Tam case. Now that the Court has ruled, those suspensions should be lifted and the applications allowed to proceed.

So, as I noted last year, the USPTO can expect a blue-streak of vulgar and off-color applications heading its way as companies vie for position in an intellectual property gold-rush.

I will caution, however, that while the Trademark Office cannot reject an application on the basis that the mark is offensive, that does not necessarily mean that you can get a product to market with that mark…yet. The Alcohol and Tobacco Tax and Trade Bureau (TTB), for example, still has rules against allowing offensive terms on alcoholic beverage labels. In all likelihood, a challenge to that rule based on the Tam case would be successful, but would take time. So, unless the TTB withdraws that rule in light of the Tam case (which it could), you might still not be able to put a beer into commerce with an offensive name until that rule is challenged.

Anyone with a product for which they would like to register a trademark that may be considered offensive, should contact a trademark attorney as soon as possible to discuss not only the likelihood of getting the trademark approved, but whether there are any other laws or regulations that would keep the product off the market despite trademark approval.