≡ Menu

TTB Opens Comment Period for Three Proposed Wine Rules

On Wednesday, October 11, 2017, TTB announced that it would reopen comment period for three relevant proposed rules for the wine industry. The proposed rules were originally published in the Federal Register in 2016. The following rules have their comment periods reopened:

  • Notice No. 160, Proposed Revisions to Wine Labeling and Recordkeeping Requirements. This proposed rule was originally published in the Federal Register on June 22, 2016. TTB proposes to amend its labeling and recordkeeping regulations in 27 CFR part 24 to provide that any standard grape wine containing 7 percent or more alcohol by volume covered by a certificate of exemption from label approval may be labeled with a varietal designation, a type designation of varietal significance, a vintage date, or an appellation of origin only if the wine is labeled in compliance with the standards set forth in the appropriate sections of 27 CFR part 4. The comment period has been reopened through January 9, 2018. You can submit a comment online here. The prior comments are viewable here.

  • Notice No. 164, Wine Treating Materials and Related Regulations. This proposed rule was originally published in the Federal Register on November 22, 2016. In summary, TTB is proposing to amend its regulations for wine production in 27 CFR part 24, particularly those regarding permissible materials and treatments that may be applied to wine and juice from which wine is made.  The comment period has been reopened through January 9, 2018. You can submit a comment online here. The prior comments are viewable here.

  • Notice No. 165, Proposed Addition of New Grape Variety Names for American Wines. This proposed rule was originally published in the Federal Register on November 17, 2016. In summary, TTB is proposing to amend its regulations for wine labeling in 27 CFR Part 24 by adding new allowable grape variety names.  The comment period has been reopened through January 9, 2018. You can submit a comment online here. The prior comments are viewable here.

For more information on wine or alcohol law, please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

{ 0 comments }

2017 Wine & Law Program in Champagne, France this October

2017 wine law program reims

2017 wine law program trademark gis reims france

This year, the University of Reims’ Wine & Law Program is in its seventh session and will discuss topics related to trademarks and intellectual property rights in the wine and spirits sector. The Program is a 6-day intensive course program in English from October 9, 2017 through October 14, 2017 at the Université de Reims Champagne-Ardenne. Topics include international and comparative aspects of geographical indications, trademarks, and intellectual property rights. The faculty consists of  Steven Charters, Silvere Lefevre, Stefan Martin, Stephen Stern, Jean-Marie Barillere, myself, and Theodore Georgopoulos. Participants are mostly professionals but law (or wine-related discipline) students are also welcome.

Courses and Seminars include:

  • Trademarks & Geographical Indications in Wine Marketing
  • Introduction to the European Protection of Geographical Indications
  • Seminar on the Practice of the EUIPO
  • Seminar on European Case Law Related to IP Rights
  • The International System of Protection for GIs and Trademarks Applied to the Wine Sector
  • Trademarks & Geographical Indications for Wines & Spirits in U.S. Law
  • Trademarks & Geographical Indications for Wines & Spirits in Australia
  • Special Event: Discussing Wine & Spirits Law with FIVS

The program also includes visits to local Champagne landmarks and relevant legal institutions, wine tasting, sightseeing, and socializing.

Mr. Georgopoulos runs the Wine & Law Program at the University of Reims in the Champagne region of France. The Program includes the wine law school session, hosted each year in English, as well as a one-year, full-time program, taught in French (DU vitivinicole et des spiritueux).

To find out more about the Program or to apply, see the official Wine & Law Program website here.

You can read more about my time at the 2011 Wine & Law Program in the article Life After Champagne: Synopsis of the 2011 Wine & Law Summer Program and 2015 Wine & Law Program at the University of Reims in Champagne, France.

{ 0 comments }

Fetzer Vineyards (“Applicant”) recently sought registration in standard character mark for HOODWINKED on the Principal Register for wine in International Class 33. In re Fetzer Vineyards, Serial No. 86789970 (June 22, 2017) [not precedential].  Originally, the Trademark Examining Attorney refused registration of the mark under Section 2(d) of the Trademark Act based on a likelihood of confusion with the registered standard character mark HOODWINKED for beer in International Class 32. The Applicant appealed and requested reconsideration, the latter of which was denied by the Examining Attorney and thus the appeal resumed. We’ve seen similar cases in the past come before the Board such as, e.g., Duo for wine and Duo for malt beverages. See USPTO Finds a Likelihood of Confusion for Duo for Beer and Duo for Wine. Not surprisingly, the Board affirmed the Examining Attorney’s refusal to register HOODWINKED for wine (very similar to its prior findings with respect to DUO).

In any likelihood of confusion analysis, the Board looks to the similarities between the marks and the similarities between the goods. In reviewing the identity of the marks, the Board found the marks to be identical, which weighed heavily in finding a likelihood of confusion. Thus, the degree of similarity between the goods required to support the finding of a likelihood of confusion was reduced.

Next, the Board looked to the similarity of dissimilarity of the nature of the goods. As previously noted, it is not necessary that the goods be similar or competitive in character to support the finding of likelihood of confusion; it is sufficient that the goods are related in some manner and/or that “conditions and activities surrounding marketing of these goods are such that they would or could be encountered by the same persons under circumstances that could, because of the similarity of marks used with them, give rise to the mistaken belief that they originate from or are in some way associated with the same source.” In re Fetzer Vineyards, at 3.

To establish a relationship between Applicant’s wine and Registrant’s beer, the Examining Attorney included printouts from 17 different third-party websites with respect to advertising or offerings that included both beer and wine under the same mark or name, along with 11 third-party, use-based registrations for marks that cover both beer and wine. Applicant attempted to downgrade the Examining Attorney’s evidence by arguing that the evidence contained small, family operations “mostly” only available for on-site consumption through beer pubs and similar. Applicant instead provided evidence from the Corsearch database that was limited to registrations for the marks of the top ten beers sold in America (e.g., Samuel Adams, Guinness, Dos Equis, Stella Artois, Heineken, Corona, etc.). Applicant argued that its search disclosed that, out of all the registrations for top ten beers sold in the U.S., only one also contained a registration for wine (another contained a registration for a beer and wine festival, which applicant argued was not wine per se). See id. at 5–6.

Applicant also provided  a printout of a search of breweries from the State of Virginia Tourism website, which Applicant claimed contained only one business that operated as both a brewery and winery.

After reviewing the information, not surprisingly, the Board established there is a relationship between wine and beer. The Board reasoned that it did not necessarily agree with Examining Attorney’s assessment that the evidence provided showed that wine and beer are “closely related,” but instead found there were enough examples of beer and wine offered under the same trademark or trade name that established the goods were related. “Aside from it being common knowledge that they are alcoholic beverages and often consumed with meals, the evidence shows that they are sometimes marketed together in the same trade channels.” Id. at 6–7. The Board looked to the website of Schram Vineyards Winery & Brewery, which it said showed how one entity can cater to both wine and beer lovers by providing both beer and wine at one location. Id. at 7. Further, “[t]he third-party registrations further show that beer and wine may emanate from the same source under a single mark.” Id. 

In regard to Applicant’s evidence for the top ten beer producers, the Board said that even if it agreed that the top ten producers did not share trademarks with wine, this alone would not be sufficient by itself to conclude that beer and wine are unrelated generally. Id. Alas, the Board determined that Applicant’s evidence had little provocative value even if it established what Applicant claimed. Thus, the Board determined—in light of the above—there was a likelihood of confusion between Applicant’s mark and Registrant’s mark and thus refused the registration of Applicant’s mark under Section 2(d) of the Trademark Act.

For more information on wine or alcohol law, or trademarks, please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

{ 0 comments }

On July 25, 2017, Governor Cuomo signed legislation to allow New York farm distilleries to sell wine, beer, and cider labelled as “New York State” for on-premises consumption. See Governor Cuomo Signs Legislation to Allow Farm Distilleries to Sell New York State Labelled Beer, Wine, and Cider for On-Premises Consumption. Previously, New York-licensed farm distilleries were not allowed to offer such beverages to visitors on site; farm distilleries could only provide New York State-labelled spirits for on-premise s consumption. This contrasted significantly with other farm licensees (e.g., farm cideries, farm breweries, and farm wineries) who generally could offer New York State-labelled wines, beers, ciders, and spirits to visitors for on-premises consumption.

The new law will amends Section 61 of New York’s Alcoholic Beverage Control law to allow farm distilleries to sell New York State-labelled beer, wine and cider for on-premises consumption and is effective immediately. To follow the legislative history, see Senate Bill S2481 and Assembly Bill A2994.

For more information on wine or alcohol law, permits, or TTB regulations, please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

{ 0 comments }

Cider Chat and Cider Law

I was recently interviewed in a podcast by Ria Windcaller of Cider Chat. We had a one-hour discussion on cider law, obtaining permits with TTB, labeling, advertising, social media, and various other topics that impact the cider community. It was a great experience, and the chat is available to listen to on Ria’s website here. Drop us a line and let us know how we did: lazahn@winelawonreserve.com.

Other ways to let On Reserve fans listen:

For Android phones:
Stitcher App:  http://bit.ly/1OvdrDq
Google Play: http://bit.ly/24Io0bc
{ 0 comments }

Recently, the state of Texas saw some interesting action with respect to wine and the law. House Bill 1514, sponsored by Rep. Jason Isaac, relating to the labeling of wine as originating from the state is causing a significant amount of concern among winemakers. The bill proposes to change the Texas Alcoholic Beverage Code with respect to wines using a Texas appellation of origin. Specifically, House Bill 1514 requires such wines to be made from 100% of grapes, fermented juice, or other fruit grown in the state and for the wine to be fully produced and finished in Texas.

The bill proposes to add the following language to the Code:

Sec. 101.672. USE OF TEXAS APPELLATION OF ORIGIN. A wine is entitled to an appellation of origin indicating the wine’s origin is this state or a geographical subdivision of this state only if:

(1) 100 percent of the wine’s volume is derived from fermented juice of grapes or other fruit grown in this state; and
(2) the wine is fully produced and finished in this state.

See 85(R) HB 1514.

The proposed bill is similar to requirements that several other states, such as California, have enacted with respect to wines using state or county appellations or origins or American Viticultural Areas (AVAs) within the state.

Texas winemakers opposed to the bill argue that the state’s grape industry is has not yet established it can support this type of demand and yield, year after year, in order to supply the state’s winemakers with state-grown grapes. This is especially true when the weather or climate is not conducive to a prosperous grape industry.

Those in support of the bill argue that the proposed changes will lead to greater transparency for the Texas wine industry and serve as further support that Texas is a serious wine producing region. The “truth in labeling” movement has been embraced by several state, especially with respect to farm or micro winery permits (which often require permittees to source grapes grown in the permittee’s respective state).

Irrespective of whether or not the Texas law may change, this is a great testament of how state wine label requirements can vary from federal. Federal wine label regulations mandate that, when a wine is labeled with an appellation of origin, at least 75% of the wine is derived from fruit or agricultural products grown in the appellation area indicated on the label. 27 CFR 4.25(b)(1)(i). The percentage increases to 85% when an AVA is used on the label. 27 CFR 4.25(e)(3)(i). There are several states, such as California, Washington, and Oregon, that have slightly different or more restrictive requirements with respect to appellations of origin.

For more information on wine or alcohol law, permits, or TTB regulations, please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

{ 0 comments }

On Reserve Trademark Special Through August 31, 2017

On Reserve Special 2017 Trademark Package

On  Reserve is excited to announce an exclusive trademark package through Lehrman Beverage Law, PLLC. The package will extend to new clients and trademark registrations through August 31, 2017. For more information, please contact us at trademarks@bevlaw.com or via phone at 202-449-3739 ext. 4. Please mention On Reserve Special 2017.

{ 0 comments }

wine beer spirits law cle international portland oregon-bensonCLE International will host its annual wine, beer, and spirits law conference in Portland, Oregon this September 14th and 15th. This year is the program’s 22nd anniversary of the wine, beer, and spirits conference and, from its lineup, it promises to have some interesting topics in beverage law. Topics include the following:

  • How Marijuana Interacts with the Alcohol Industry
  • Trade Practice Developments
  • When is a Wine Not a Wine?
  • What the Heck is Hard Seltzer?
  • TTB Update
  • State Regulators Panel
  • Alcohol Regulatory and Distribution Issues in the Transactional Context
  • Trends in Retailer Liability
  • Frequent Subtopics in Supplier-Distribution Litigation
  • Producers Making Retail Sales – Expanding the Market or Threat to Competition?
  • Recent Industry Trademark Developments
  • Private Label Legal Issues

and  several others.

The conference will take place at the The Benson in Portland and the brochure mentions that up to 13 hours of MCLE credits can be obtained (including one hour of ethics).

For more information or to register, see CLE International website’s 22nd Annual National Conference Wine Beer & Spirits Law. The  brochure is here.

Image property of CLE International.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

{ 0 comments }

This blog article is the second in a series called “Wine Law Trademark Series” which aims to help industry members understand general trademark concepts.

Why should a winery consider a trademark clearance search?

Before registering a mark with the U.S.P.T.O., wineries and wine industry members should consider conducting a trademark clearance search. While certainly not required before submitting an application to the U.S.P.T.O., a clearance search can help wine industry members understand potential infringement liability if the mark or a similar mark is registered. A clearance search can be completed by the owner of the mark, but it is generally best to work with a trademark attorney in the wine industry who has experience running clearance searches and may also have access to non-public databases.

Clearance searches are helpful because, while a mark may fall on the higher end of the distinctiveness and protectability spectrum, such does not guarantee registration nor does it make the mark immune from potential infringement claims. Even if the mark is fanciful or arbitrary, it could still infringe upon another company’s mark. The applicant may not find out about the potential infringement until months after the trademark application has been submitted and reviewed by the Examining Attorney or until the mark is published on the The Official Gazette and seen by a third party. Of course, this is well after the applicant has invested time submitting the registration, filing fees, and possibly even attorney fees. A comprehensive trademark clearance search can help find potentially controversial marks well before the registration process begins. For these reasons, wine industry members should consider working with counsel to obtain a clearance search of marks they are interested in registering.

What does a trademark clearance search include?

While the search will depend on the mark, its proposed international class, as well as the conductor of the search, the clearance search should at least consist of a review of the U.S.P.T.O. database for identical or nearly identical marks. This can help determine if there are any very obvious obstacles from the outset. One of the benefits of working with a trademark attorney is that the attorney may have access to commercial databases that pull many of the U.S.P.T.O. registrations and will allow the attorney to search using various algorithms. Sometimes, commercial databases also have access to more than just the federal (and state) trademark databases. For example, the platform Corsearch allows the enduser to review databases including international trademark registrations (which can be narrowed down by country or region).

Even though the above step may be taken in a clearance search, such screenings may not be comprehensive as they may not reveal potentially conflicting marks that are based on common law rights which may not have obtained U.S.P.T.O. registration. Thus it is important that a comprehensive clearance search review more than just the trademark databases. For example, it may be worthwhile to review the COLA database to determine if there are prior label approvals for a particular mark or word or even Google. While the issuance of a COLA by TTB does not guarantee or constitute trademark protection, it could still indicate common law right to a particular name or mark.

When I conduct a trademark clearance search for one of my wine clients, I review relevant databases that may provide specific results to the type of product I am reviewing. For example, my clearance searches will include a review of the TTB COLA database if the search is for a good or service related to alcohol beverages. Further, I look to additional databases that may be populated by industry members or consumer input. I also look to databases that aggregate beer or distilled spirits, even if the good or service is wine, because the U.S.P.T.O. has found likelihood of confusion for beer and spirits marks as well.

For more information on wine or alcohol law, trademark law, or clearance searches please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

{ 0 comments }

Last week, TTB issued an industry circular (Industry Circular Number 2017-3) that cancels a declaration requirement with respect to Pinot Noir wines from the Languedoc-Roussillon Region of France. The 2017 industry circular supersedes Industry Circular 2010–5, Pinot Noir from the Languedoc-Roussillon Region of France, which required importers of wines naming Pinot Noir as the single grape varietal an Languedoc-Roussillon as the appellation of origin to obtain a declaration from the Government of France.

Previously, TTB obtained information from French authorities in regard to the investigations of wine producers and merchants in the Languedoc-Roussillon region of France who were suspected of selling wine that was labeled as Pinot Noir but did not contain Pinot Noir grapes. The French charged some wine of the producers and merchants with fraud, several of which were convicted. As a result of the French investigations, TTB issued Industry Circular 2010–5 in May 2010. That ciruclar required U.S. importers of bottled or bulk wine with a label naming Pinot Noir as the single grape varietal and an appellation of origin in the Languedoc-Roussillon region of France to obtain a declaration from the Government of France stating that:

  1. The wine was produced from at least the minimum percentage of wine derived from pinot noir grapes as required by French law for the appellation Languedoc-Roussillon;
  2. The wine was produced from at least the minimum percentage of wine derived from pinot noir grapes grown in the appellation Languedoc-Roussillon as required by French law for using said appellation on the label; and
  3. The wine otherwise conforms to the requirements of the French laws and regulations governing its composition, method of production, and designation.

France’s General Directorate for Competition Policy, Consumer Affairs, and Fraud Control (DGCCRF) told TTB that new regulatory measures were put into place to address the occurrence of such violations going forward. Further, the DGCCRF informed TTB that the appeals process had concluded for those French wine producers and merchants convicted of fraud. As a result, TTB cancelled the declaration requirement instituted by TTB Industry Circular 2010–5. The cancellation is effective immediately.

For more information on wine or alcohol law, or labeling regulations, please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

 

 

{ 0 comments }