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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
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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.

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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.

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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.

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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.

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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.

 

 

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

Wineries often look to common law to protect their marks and intellectual property. This can be a feasible solution if the winery remains small and if its products remain in a limited market (i.e., intrastate). However, problems often arise once sales and product expand to new markets (i.e., outside of a winery’s home state) and enter interstate commerce where other wineries may have common law rights to the same or similar marks. For this reason—and many others—wineries should consider registering a mark with the United States Patent and Trademark Office (U.S.P.T.O.). Registering a mark with the federal trademark office can help avoid issues such as confusion and conflicts that may be caused by overlapping marketings. A federal registration grants rights to the mark holder throughout the United States and its territories.

When seeking to register a mark with the U.S.P.T.O., one must first determine if the mark is registrable. Registrability has is best thought about as a spectrum with two distinct ends. On the first end are marks that are inherently distinctive and protectable; on the opposite end are marks that are not inherently distinctive and either not protectable at the time of adoption (but may, e.g., acquire distinctiveness through use over time) or are not protectable at all. Ideally, a strong mark will fall on the first end of the spectrum.

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Lindsey A. Zahn, author of On Reserve, was recently named to Lawline’s Top 20 Women Faculty of 2016 for a course called “Introduction to Wine Law.” In selecting the top 20, Lawline “focused on the top-rated, most viewed and thoughtfully reviewed 2016 courses taught by a woman.” From Lawline directly:

Lindsey’s CLE course, Introduction to Wine Law,  provides a brief history of U.S. wine regulation, addresses some of the contemporary issues in wine law, and offers insight on some of the most convoluted laws in existence since the repeal of Prohibition. Lawline members love how this presentation ‘opened [their] eyes to the extent of regulation of the industry’ through ‘well-organized’ and ‘useful slides,’ in a course that was both ‘fascinating’ and ‘informative.’ With a solid 98 percent rating, we say cheers to that!

See Lawline’s Top 20 Women Faculty of 2016: Lindsey A. Zahn.

Introduction to Wine Law surveys the brief history of wine regulation in the United States, addresses some of the contemporary issues in wine law, and offers insight on some of the most convoluted laws in existence since the repeal of Prohibition. The course can be viewed through Lawline here.

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Wine Law Program Reims Champagne

Wine Law Summer School Program Reims France

This year, the University of Reims’ Wine & Law Program is in its seventh session and will discuss topics related to wine law and intellectual property rights in the wine sector. The Program is a 10-day intensive course program in English from June 19, 2016 through June 28, 2016 at the Université de Reims Champagne-Ardenne and applications for the Program are currently being accepted. The course will focus on topics like international and comparative aspects of geographical indications, trademarks, and intellectual property rights. The faculty includes Steven Charters, Silvere Lefevre, Stefan Martin, Stephen Stern, Jean-Marie Barillere, myslef, 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
  • The International System of Protection for GIs and TMs 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 summer school 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 summer 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.

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Massachusetts Announces Alcohol Beverage Task Force

Last month, Massachusetts announced the creation of the Treasurer’s Alcohol Task Force, which will create an independent group of professionals to review the state’s legal and regulatory framework of alcohol beverages. See Treasurer Deborah Goldberg Announces Alcohol Task Force. The Task Force will generate an assessment of the current climate and advise on any necessary improvements. E. Macey Russell, Partner at law firm Choate, Hall & Stewart LLP, will chair the group.

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