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2016 Wine and Law Program at the University of Reims

Wine Law Program University of Reims

This year, the University of Reims’ Wine & Law Program is in its sixth session and will discuss topics related to wine law and intellectual property rights in the wine sector. The Program is from June 20, 2016 through June 29, 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 breeder’s rights. The faculty includes Steven Charters, Silvere Lefevre, Tracy Genesen, Stephen Stern, Tjeerd Overdijk, and Theodore Georgopoulos. Participants are mostly professionals but law (or wine-related discipline) students are also welcome.

Courses and Seminars include:

  • Introduction to Wine Marketing—Wine, Terroir & Society
  • Introduction to the European protection of Geographical Indications
  • Seminar on European Trademark Law
  • Seminar on European Case-Law related to IP Rights
  • The International System of Protection for GIs and TMs applied in the Wine Sector
  • Introduction to the I.P. protection for plant varieties in the European Union
  • GIs and Trademarks for Wines in U.S. Law
  • Australian GIs and Trademarks in the Wine Sector

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).

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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On March 3rd, TTB published two final rules in the Federal Register the first which modified portions of currently established AVAs and the second which establishes a new AVA. The first rule alters an existing viticultural area in Oregon and the second alters an forms a viticultural area in sections of Iowa and Missouri. 

  • Expansion of the Willamette Valley Viticultural Area: The first final rule expands the Willamette Valley Viticultural Area by approximately 29 square miles, adding two vineyards covering 508 acres. The original petition was received by TTB from  Steve Thomson, the executive vice president of King Estate Winery in Eugene, Oregon. The expansion is located at the southern tip of the current AVA’s boundaries. The area to be included in the expansion was not previously part of another AVA and, interestingly, neither of the two vineyards existed at the time that the Willamette Valley AVA was established (in 1983). The final rule is effective April 4, 2016. 
  • Establishment of the Loess Hills District Viticultural Area: The second final rule establishes a new AVA in sections of Iowa and Missouri called the Loess Hills District Viticultural Area. The AVA comprises of approximately 12,897-square miles in western Iowa and northwestern Missouri and is not presently part of another AVA. The original petition was filed by Shirley Frederiksen, on behalf of the Western Iowa Grape Growers Association and the Golden Hills Resource Conservation and Development organization. TTB published a notice in the Federal Register on June 18, 2015, but did not receive any comments. Despite such, TTB found the petition provided evidence in support of recognizing the Loess Hills District Viticultural Area. The final rule is effective April 4, 2016.

For more information on wine or alcohol law, AVAs, or TTB matters, 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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Upcoming CLE on Wine Law

On May 18, 2016, I will be presenting a CLE for Lawline on wine law. It will be a live broadcast and the course will provide an introduction to the history of wine regulation in the U.S., labeling and advertising, federal and state licensing regimes, and trade practice laws.  A short description is below:

The alcohol beverage industry is one of the most regulated consumer product industries in the United States: producers, importers, distributors, and retailers generally require licenses through both federal and state government agencies; labels and formulas are subject to administrative approval prior to sale at market; and regulations exist that often prohibit cross ownership between licensed entities. The wine industry is not immune from these concerns, and wine is additionally subject to laws and rules for grape varieties and appellations of origin. Wine was also the topic of the 2005 Supreme Court case Granholm v. Heald, which had a major impact on the industry in the last decade.
 
This course, presented by Lindsey A. Zahn, lawyer at Lehrman Beverage Law, PLLC, provides a 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 is approved for credit in several states, and is pending approval in North Carolina. For more information, please see Introduction to Wine Law

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The “Naked” Truth of Likelihood of Confusion

Don't Worry Drink NakedIn a recent opinion issued by the Trademark Trial and Appeal Board, Applicants sought to register DRINK IT NAKED (in standard characters) on the Principal Register for Tequila in International Class 33. In re Castaneda and Anderson, Serial No. 85876309 (January 13, 2016) [not precedential]. The Trademark Examining Attorney originally refused registration of Applicants’ mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 2(d), on the ground that Applicants’ mark resembled a previously registered mark, DON’T WORRY DRINK NAKED, and design for distilled spirits in International Class 33 and was likely to cause confusion, mistake, or to deceive purchasers. Id. at 2. Applicant appealed after Examining Attorney made the refusal final.

The Board first looked to the relatedness of the goods, channels of trade, and classes of purchasers. In doing so, the Board noted that Applicants sought registration of a mark for “tequila” whereas the registered mark was for “distilled spirits.” In examining the definition of a “spirit,” the Board unsurprisingly concluded that “[t]equila is one such distilled spirit . .  .” and that “distilled spirits” in the cited registration “subsume the more narrowly identified ‘tequila’ in the involved application.” Id. at 4. Alas, the Board easily found the goods to be legally identical, which Applicants did not dispute. 

As a result, the Board presumed that the goods travel in the same channels of trade and were available to the same potential purchasers of such goods. Id. Since neither Applicants nor Registrant sought to further limit the goods to a particular channel of trade or classes or purchasers, the Board further presumed that the goods move “in all channels of trade normal for those goods, and that they are available to all classes of purchasers of the goods, which in this case are ordinary consumers.” Thus, the Board found the second and third du Pont factors weighed heavily in regard to finding a likelihood of consumer confusion.  Id. at 5.

The Board then moved on to the similarity of the marks, focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression. In doing so, the Board noted that Applicants’ mark creates “an overall commercial impression that is similar to Registrant’s composite mark: [image of Registrant's mark].” Id. at 7. The Board noted that the fact that Registrant’s mark contained patterns and stars did not “obviate” the confusion between the two marks, emphasizing that the crossed sugarcanes were in some way a reference to a raw ingredient commonly found in distilled spirits. Id. “[T]he literal portion of Registrant’s mark is far more likely to be impressed upon a purchaser’s memory and to be used when requesting the goods than is the sugarcane design . . . .” Id. at 8. 

Applicants proceeded to argue that the marks were sufficiently different in connotation to avoid confusion, contending that, “consumers would perceive the term ‘naked’ in Applicants’ mark as referring to a tequila beverage that did not contain any drink mixers or added juices [and] they would perceive the term ‘naked’ in the registered mark as being unclothed.” Id. Not surprisingly, the Board found this argument unpersuasive, reasoning that the phrase “drink naked” may propose an image of a person consuming alcohol unclothed, but there was “no reason why the phrase ‘drink it naked’ could not also evoke such an image, and there is nothing in the record to support Applicants’ contention that ‘drink it naked’ refers to their goods rather than the consumers thereof.” Id. at 8–9. The Board recognized that “drink it naked” could be interpreted to either be a beverage without mixers or juice, but it could also be perceived as a proposal to undress. 

The Board found the marks were similar in their connotations and commercial impressions and more similar than dissimilar with respect to their entireties as to appearance and pronunciation, in additional to the identicalness of the goods and the trade channels. Thus the Board found in favor of a likelihood of confusion and affirmed the Examining Attorney’s prior refusal to register Applicants’ mark.

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.

 

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TTB Updates Guidance on Shelf Plans and Shelf Schematics

On February 11, 2016, TTB issued Ruling 2016-1 titled “The Shelf Plan and Shelf Schematic Exception to the ‘Tied House’ Prohibition, and Activities Outside Such Exception.” The ruling concerns promotional activities commonly associated with category management programs and looked at such practices with respect to the federal tied house laws.  The agency said its guidance was issued as a result of industry requests for clarification with respect to shelf plans and schematics and insight on what the agency considers to be permissible. For more information, see TTB Ruling 2016-1, The Shelf Plan and Shelf Schematic Exception to the “Tied House” Prohibition, and Activities Outside Such Exception

Background

Very generally speaking, tied house laws are designed to prevent a supplier from gaining too much control over or domination of a retailer, as well as to prohibit supplier acts of unlawful inducements as a means to encourage the sale of alcohol beverages. Both the federal law and state laws speak to tied house laws. From the federal perspective—and again, generally speaking—the law prohibits a supplier from inducing a retailer to purchase its products at the exclusion of such beverages offered for sale by other suppliers in interstate or foreign commerce. Unlawful inducements can include (but are not limited to) an industry member furnishing, giving, renting, lending, or selling equipment, fixtures, signs, supplies, money, services, or other things of value to a retailer. This means that many types of acts or services performed by a supplier to a retailer may fall into the “unlawful inducement” category and may be prohibited. The federal law contains tied house restrictions at 27 U.S.C. § 205(b) (the Federal Alcohol Administration Act) and TTB’s implementing regulations are found at 27 CFR Part 6.

While the tied house laws are generally very restrictive, there are several exceptions on the federal level. For example, 27 CFR § 6.99(b) states that should an industry member provide a retailer with a recommended shelf plan or shelf schematic for wine, malt beverages, or distilled spirits, such is not considered to be an unlawful inducement within the context of the Federal Alcohol Administration Act or TTB’s regulations. This allowance was the topic of TTB’s latest ruling. 

TTB Ruling 2016-1

The TTB Ruling 2016-1 talks to promotional activities generally associated with category management programs. In particular, TTB focuses on the current regulation that talks to stocking, rotation, and pricing service, found at 27 CFR § 6.99(a)-(b):

(a) General. Industry members may, at a retail establishment, stock, rotate and affix the price to distilled spirits, wine, or malt beverages which they sell, provided products of other industry members are not altered or disturbed. The rearranging or resetting of all or part of a store or liquor department is not hereby authorized. 

(b) Shelf plan and shelf schematics. The act by an industry member of providing a recommended shelf plan or shelf schematic for distilled spirits, wine, or malt beverages does not constitute a means to induce within the meaning of section 105(b)(3) of the Act. 

Section 6.99(b) was implemented over 20 years ago by TTB’s predecessor agency, the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATF). The regulation was executed in part due to inter-industry petition. Like many laws and regulations, § 6.99(b) has much history and involved many politics, neither of which are not the topic of this article. However, it should be noted that the BATF had some hesitation toward § 6.99(b)’s implementation—in part due to the agency’s concern that shelf schematics and shelf plans could have an effect on fair trade. Industry members assured the BATF that § 6.99(b) would only be used as a standalone marketing tool and that such schematics and plans had little or no intrinsic value. The agency was (at least partially) assuaged by industry comments and arguments, and implemented the regulation with the understanding that the BATF would revisit § 6.99(b) if it appeared the exception was abused or otherwise used in violation of federal tied house laws. 

Industry members recently requested that TTB clarify its position with respect to § 6.99(b). TTB’s ruling attempts to describe what a shelf plan or shelf schematic is or is not with respect to the exception in 27 CFR 6.99(b). The ruling defines a shelf plan or shelf schematic as “a simple sales tool offering options as to how an industry member thinks a retailer’s shelves should appear.” See TTB Ruling 2016-1, Page 6. TTB is not concerned about the complexity of the shelf plan or shelf schematic and does not object to suppliers furnishing such shelf plans or shelf schematics to retailers, as noted in its ruling. TTB refers to the § 6.99(b) exception as “plain language.” Id. This seems relatively consistent with past agency policy. However, TTB made an important determination in its recent ruling, one that is vital for all industry members.

When TTB reviewed current practices, the agency discovered that some industry members are providing plans and schematics “as well as services that far exceed the exception in § 6.99(b), which unambiguously exempts only the simple act by an industry member of providing a recommended shelf plan or shelf schematic . . . .” Id. In its analysis, TTB stated the additional services constitute things of value, and serve as a means to induce under § 6.21 of TTB’s tied house regulations. Id. TTB further instructed a violation of the Federal Alcohol Administration Act would arise if the actions resulted in the exclusion of a competitor’s product with the connection to interstate or foreign commerce. Id. Several other factors would need to be examined, such as whether the retailer’s independence is put at risk, before such violation could be ascertained.

In its ruling, TTB provided a list of additional actions or services which would not be exempted by § 6.99(b) and which may be subject to additional scrutiny and investigation. The practices are as follows:

  1. Assuming, in whole or in part, a retailer’s purchasing or pricing decisions, or shelf stocking decisions involving a competitor’s products;
  2. Receiving and analyzing, on behalf of the retailer, confidential and/or proprietary competitor information;
  3. Furnishing to the retailer items of value, including market data from third party vendors;
  4. Providing follow-up services to monitor and revise the schematic where such activity involves an agent or representative of the industry member communicating (on behalf of the retailer) with the retailer’s stores, vendors, representatives, wholesalers, and suppliers concerning daily operational matters (e.g., store resets, add and delete item lists, advertisements, and promotions); and
  5. Furnishing a retailer with human resources to perform merchandising or other functions, with the exception of stocking, rotation, or pricing services of the industry member’s own products (per § 6.99(b)).

Id. at 7.

(The above should not be considered an exhaustive list with respect to practice or services that may fall outside of § 6.99(b).)

In issuing its latest ruling, TTB reasoned that the alcohol beverage industry is experiencing significant growth and that many smaller businesses are entering the market and the agency has interest in maintaining a level playing fields for all industry members. 

Takeaways

Industry members should be mindful of TTB’s latest guidance and interpretation of § 6.99(b). Specifically, alcohol beverage businesses must understand that TTB interprets the regulation as “plain language,” meaning that the exemption does not grant industry members privileges beyond what is explicitly stated in § 6.99(b). Second, suppliers—on both the wholesaler and production side—should be attentive to their actions and practices with respect to providing retailers with recommended shelf plans and shelf schematics. Services beyond the scope of § 6.99(b) likely violate federal (and possibly state) tied house laws, but it is imperative that industry contact their alcohol beverage counsel for further insight. 

For more information on wine or alcohol law, or tied house, 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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New Publication on Wine and Beer Law

Wine and Beer Law Thomson Reuters WestlawIn February, Thomson Reuters released the latest version of its Inside the Minds series. The latest issue in the series is titled Wine and Beer Law and surveys insight from several U.S. attorneys in the alcohol beverage field. 

The chapters and authors include the following:

  1. Clare Abel, Partner, Burch & Cracchiolo PA – “Staying in Compliance with the Wine, Beer, and Liquor Industry’s Three-Tier System”
  2. John G. Mackie, Managing Partner, Carle Mackie Power & Ross LLP – “Local Regulation of Wine and Beer Producers in California”
  3. Lindsey A. Zahn, Attorney, Lehrman Beverage Law PLLC – “Navigating the Challenges of a Regulated Industry”
  4. N. Davey Neal, Chair, Government Affairs Practice Group, Clark Quinn Moses Scott & Grahn LLP – “Current and Future Issues Facing Local Brewers and Vintners”
  5. Robert Cattanach and Gabrielle Wirth, Partners, Dorsey and Whitney LLP – “Top Ten Pitfalls in Brewery and Winery Acquisitions”
  6. James M. Seff and Carrie L. Bonnington, Partners, Pillsbury Winthrop Shaw Pittman LLP – “A General Introduction to Alcohol Beverage Laws and Regulations”

From Thomson Reuters:

In Wine and Beer Law, experienced lawyers examine various areas of law in the context of the alcoholic beverage industry. These experts discuss:

  • The system that’s been in place since Prohibition ended
  • The recent changes and trends in that system
  • How attorneys and their clients can best work within the system

This book also covers mistakes to avoid when acquiring a winery or brewery, following the rules of the “three-tier system,” and local regulations which are likely to spread across the country, as well as other areas of law affecting this industry. Whether you represent a winery or brewery, a distributor, or a restaurant or bar, the advice and perspectives in Wine and Beer Law will help you comprehend the state of alcoholic beverage law today.

See more at Wine and Beer Law: Leading Lawyers on Navigating the Three-Tier System and Other Regulations on Alcoholic Beverages (Inside the Minds).

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Very much in line with one of On Reserve’s recent posts, The Importance of Grape Varieties on American Wine Labels, TTB announced last week that it administratively approved a new grape variety for use on American wine labels.  The new grape variety, Coda di Volpe, can be used on American wine labels contingent upon TTB’s next rulemaking to update the list of approved varieties in the CFR (i.e., at 27 CFR 4.91). TTB currently has a list of many grape varieties that have been administratively approved for use on American wine labels, which can be found on its American Grape Variety Names website 

When a petition to approve a new grape variety for use on American wine labels is submitted to and reviewed by TTB, the agency issues an administrative approval if the grape variety petition is approved. This means that TTB will approve American wine labels that use the grape variety name, but such label approvals are valid for labels used in the U.S. market (i.e., such approvals do not necessarily imply that the variety names are acceptable in other countries). After issuing an administrative approval, TTB will propose rulemaking by publishing a notice in the Federal Register to add the grape variety name to the list of approved grape varieties that appear in 27 CFR 4.91. Just like other proposed rules, this process invites the public to comment on whether the administratively approved grape variety should be recognized as an approved grape variety in 27 CFR 4.91. Public comment may or may not influence the agency to approve the variety. As of today, there are almost 50 grape varieties that were granted administrative approval for use on American wine labels, but have not yet been subject to notice and comment. 

After completing the rulemaking process, should the Agency decide for any reason not to add the grape name to the approved list, any final rulemaking action will supersede its administrative approval. Essentially, this would affect the label approvals for a wine sporting an administratively approved grape variety. 

For more information on wine or alcohol law, or submitting a varietal petition to TTB, 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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TTB Establishes New AVA Lamorinda Viticultural Area

On Wednesday, February 24th, TTB issued a final rule in the Federal Register establishing a new American Viticultural Area (AVA) called Lamorinda Viticultural Area. The new AVA contains 29,369 acres in Contra Costa County, California and is entirely within the established (and larger) San Francisco Bay and Central Coast AVAs. The original petition was submitted to TTB by Patrick L. Shabram, on behalf of the Lamorinda Wine Growers Association, and proposed the establishment of the “Lamorinda” AVA.  The proposed AVA contains 46 commercial vineyards. The final rule is effective March 25, 2016.

The petition submitted by Mr. Shabram noted the distinguishing features include topography, geology, soil, and climate, such as the following:

  • The terrain of the Lamorinda is composed of moderate-to-steep hills with narrow valleys. Such steep hills prevent the use of machinery for vineyard work and instead require work to be done by hand.
  • The hilly terrain results in disparate levels of sunlight at different elevations, which makes Lamorinda suitable for both cool- and warm-climate varietals. 
  • Lamorinda contains steeper and more rugged terrain than areas to the south and west and lower and flatter plains than areas to the north and east. Lamorinda also appears to be more suburban, which contrasts to the urban areas to the east and west.
  • The dominant geological formation in Lamorinda is the Orinda Formation, which attributes the clay-rich soils.
  • Climate in the Lamorinda AVA is warmer than that of surrounding areas. 

The proposed rule was published by TTB in the Federal Register on April 14, 2015 and received a total of 12 comments. All 12 comments were in support of establishing this proposed AVA, and many comments emphasized the strong community awareness and support in the establishment of the Lamorinda AVA. See comments here

Establishing new AVAs is just one of the many authorities of TTB. 27 CFR Part 4 empowers TTB to create and establish viticultural areas, as well as regulate the use of their names as appellations of origin. 27 CFR Part 9 talks specifically about the process required to establish new AVAs, such as the preparation and submissions of petitions for establishing new or modifying current AVAs.

For more information on wine or alcohol law, AVAs, or TTB matters, 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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Which Came First: The Trademark or the Viticultural Area?

Last week, San Antonio Express News reported that a California-based winery named San Antonio Winery brought a trademark suit against a San Lara Vineyards Blanco de San AntonioAntonio-based winery called Lara Vineyard. In its complaint, San Antonio Winery alleged that Lara Vineyard’s use of the term “San Antonio” as a fanciful name on its labels infringed upon the California winery’s mark. San Antonio Winery has been in business since 1917 and is the owner of the U.S. Trademark Registration for a stylized design mark for the words “San Antonio” for use in connection with wine, the word mark registration for “San Antonio” in connection with wine, as well as several other related marks. The California-based winery has a number of wines containing the name “San Antonio,” such as San Antonio Winery Dessert and San Antonio California Champagne, which the complaint alleges are used in commerce.

In July, TTB approved Certificate of Exemptions for two labels belonging to Lara Vineyard that contain the words “San Antonio,” specifically Blanco Dulce de San Antonio and Blanco de San Antonio. The TTB Certificate of Exemptions indicate that the applicant used the fanciful names “Blanco Dulce de San Antonio” and “Blanco de San Antonio” on the label exemption application. When one examines the actual back label, San Antonio is highlighted as the place of production and bottling. Further, the label also clarifies that the wine is for sale in the state of Texas only. (What is also interesting to note is that the complaint alleges the Lara Vineyard obtained “TTB label approval” with respect to its Blanco Dulce de San Antonio and Blanco de San Antonio wines, but in actuality, Lara Vineyard does not have a Certificate of Label Approval for either of these products because the winery applied for, and was granted, a Certificate of Exemption from TTB due to the fact that Lara Vineyard is currently only selling its wine in the state of Texas. A minor detail, but still important nonetheless.)

According to the complaint, San Antonio Winery was not at issue with Lara Vineyard’s use of the term “San Antonio” with respect to the wine’s geographic origin, i.e., as the appellation. Instead, San Antonio expressed concern over Lara Vineyard’s fanciful names Blanco Dulce de San Antonio and Blanco de San Antonio. Specifically, the California winery alleges in its complaint that Lara Vineyard’s use of “San Antonio” in the fanciful name “will cause consumers to believe that Lara Vineyard’s wines come from San Antonio [Winery] or that Lara Vineyard’s wine is affiliated with, connected with or sponsored or licensed by San Antonio [Winery] and that use of the term SAN ANTONIO in a fanciful name, as a trademark, or part of a trademark in connection with the sale or offer for sale of wine constitutes an infringement of San Antonio [Winery]‘s federal trademark rights.” See  Civil Action No. S:16-cv-S3. As a result, the Winery claims that Lara’s use of the San Antonio fanciful name constitutes unfair competition under any federal or state trademark or unfair competition laws.

According to San Antonio Express News, Lara Vineyard willingly changed the name on its labels to read “Blanco de San Antonio, Texas,” and “Blanco de Dulce de San Antonio, Texas,” but even though the vineyard took such measures, San Antonio Winery still filed a suit in federal court. 

What is interesting to consider is that San Antonio Winery obtained its first USPTO trademark with respect to “San Antonio” and wine in 1933. The very first American Viticultural Area was not approved (federally) until 1980. Even though this particular case does not call into question the use of San Antonio as a place of geographic origin, and even though it is not an American Viticultural Area, it is still interesting to consider how a trademark approval containing a geographically significant name may come into play in this particular case, especially when the trademark was obtained prior to the development of the American Viticultural Area system or a formal U.S. appellation of origin system. For example, there is no doubt that California-based San Antonio Winery has obtained federal trademark rights to the term “San Antonio” with respect to wine. However, will this factor in with respect to the use of the term San Antonio by a winery actually located in San Antonio? How will this court divide the ground between trademarks and geographically significant names, or will it? 

The original complaint was filed in the United States District Court Western District of Texas San Antonio Division as Civil Action No. S:16-cv-S3

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.

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Expanded Definition of Hard Cider for Taxation Purposes

On December 18, 2015, President Obama signed the Protecting Americans from Tax Hikes Act of 2015 (“the PATH Act”) into law. The PATH Act contains changes to certain statutory provisions which are administered by TTB, including applicable sections of the Internal Revenue Code (“IRC”) which apply to alcohol beverages. In particular, the modifications under the PATH Act expand the definition of “hard cider” for taxation purposes. Section 335 of the PATH Act alters the definition of wine that is eligible for hard cider excise tax rates (which are lower than other wine tax classes, as per TTB’s current Tax and Fee Rates). 

Currently, for taxation purposes only, “hard cider” is defined as the following:

[A] still wine derived primarily from apples or apple concentrate and water, containing no other fruit product, and containing at least one-half of 1 percent and less than 7 percent alcohol by volume, 22.6 cents per wine gallon.

26 U.S.C. 5041(b)(6). Still wines are further classified as “wines containing not more than 0.392 gram of carbon dioxide per hundred milliliters of wine . . . .” 26 U.S.C. 5041(a). This means, to meet the current “hard cider” definition for taxation purposes, a product must be a still wine (i.e., not more than 0.392 gram of carbon dioxide per hundred milliliters of wine), derived primarily from apples or apple concentrate and water (containing no other fruit product as the cider base), and have an alcohol by volume of at least 0.05% alcohol by volume and less than 7.0% alcohol by volume. 

The PATH Act revises the definition of “hard cider” for taxation purposes to extend the carbonation level from 0.392 gram of carbon dioxide per hundred milliliters of wine to be 0.64 gram; increases the allowable alcohol by volume content from less than 7% alcohol by volume to less than 8.5% alcohol by volume; and authorizes the use of pear, pear juice, and pear products and flavoring in the definition of “hard cider” (again, all for taxation purposes). Such changes apply to hard cider removed from bond after December 31, 2016, and the above mentioned changes will go into effect in 2017. See IRC Amendments Affecting Excise Tax Due Dates and Bond Requirements for Eligible Taxpayers and Revision of Hard Cider Definition.

Keep in mind that the above changes do not modify the federal definition of “hard cider” with respect to TTB labeling, permits, or advertising (which apply to ciders at or above 7% alcohol by volume). Note that ciders under 7% alcohol by volume fall within the labeling jurisdiction of the FDA and are (generally speaking) subject to different requirements. 

For more information on wine or alcohol law, excise taxes, hard cider, or TTB matters, 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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