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There’s been a lot of news over the last few months with respect to China and wine trademarks, especially with respect to French winemakers. See, e.g.Is China Making a Step Forward in Wine Trademark Law? and French Wine Company Castel Frères to Pursue Trademark Battle Against Panati in China’s Supreme Court. On May 1, China’s new trademark law went into effect. The new law presents a number of significant changes, some of which are highlighted below:

  1. Aims to deter trademark hijacking (or squatting) by imposing an obligation to uphold the principle of good faith on new mark filings and similar for trademark agencies, and recognition of bad faith extended further;
  2. Attempts to deter infringement by, i.e., raising the compensation ceiling for trademark infringement to about $500,000 (U.S.), or roughly six times the previous limit;
  3. Greatly increases the allowable types of marks to be registered (inclusive of sound marks); and
  4. Overall increased improvement of administrative filing details such as introducing timelines for processing reviews and oppositions.

For more details on China’s new trademark law, see Trademark Law of the People’s Republic of China (2013, Comparison Version) and, for insight with respect to the wine industry, Section 4 of No Wine-ing: The Story of Wine Companies and Trademark in China.

This last week, a group of French wine authorities received a significant victory at a Beijing court with respect to trademark registration. A Chinese company sought to register the Chinese translation of Roussillon as a brand name as well as the Latin version of Roussillon and Banyuls, but its wines did not contain grapes from the Southern French wine region. See Roussillon Winemakers Win Trademark Case in China. The Tribunal of Commerce and Industry annulled the request to register on the grounds that registering Roussillon as a brand name had the potential to cause consumer confusion.

Is this the work of China’s new trademark law? Perhaps. At this point, and until we start to see more cases with similar results, it is hard to say. The new Trademark Law does clarify the terms of likelihood of confusion, and verifies that there must be a likelihood of confusion when similar marks are used on goods that are either the same or similar. Perhaps it is a strong enough outcome right now that the Court ruled against what might otherwise promote consumer confusion in the wine market. Still, it will be easier to conclude in favor of the new law should this case have the same (or similar) result on appeal. (As of now, the Chinese company is reportedly appealing the ruling of the Tribunal of Commerce and Industry. See id.) There have been both favorable and unfavorable results with respect to trademark registrations in China (before the new law went into effect), and one positive result may be too early to conclude the effectiveness of the amendments.

DISCLAIMER: This blog post is not intended as legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

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Uproot Wines Rose Wine Label The Minimalistic Wine Label Approach: Are We Heading Toward Textless Labels?There’s been some chatter recently about Uproot Wines and its newly introduced color-coded labels that represent the wine’s flavor palette. See, e.g., Millennials Targeted with Color-Coded Labels. The colored boxes on the true front label of the wine feature what Uproot Wines declares is a flavor palette, or a profile of what the wine in the bottle tastes like. The size of the boxes indicates how dominant a certain note is. For example, its 2011 Cabernet Sauvignon features a label with colored boxes in shades of raspberry, mustard yellow, burgundy, grape, and brown. The Cab’s flavor profile is said to correspond with these colors and consist of notes of raspberry, Cuban cigar, cherry, blackberry, and dark chocolate (with raspberry and blackberry appearing as the largest colored boxes and, hence, the most predominant notes). While the labels are unique, I’ll leave it to the marketers of the world to talk about the branding and design elements. Instead, I want to look at the labels from a legal perspective under 27 CFR Part 4, the relevant section of the Code of Federal Regulations on wine labeling and advertising. See generally 27 CFR Part 4 (outlining provisions of wine labeling and advertising regulations).

Generally speaking, like other wine labels within the labeling jurisdiction of the TTB, Uproot’s labels were pre-approved by the federal government. Such is evidenced by its Rosé Wine label approval here and its Grenache Blanc label approval here. Additionally, the true back labels of the wines produced by Uproot contain mandatory statements, such as the Alcohol by Volume statement, Net Contents Statement, and the Health Warning Statement. The true back label is a good example of the bare bones of a wine label, i.e., the back label contains only mandatory information that is required by federal law (with the exception of the website and social media addresses, which are considered to be voluntary information). I quite like the label design of these wines, and it left me wondering the following: are we heading toward a trend of textless wine labels? Or will demand for truth in labeling reign?

Uproot Wines Rose Wine True Back Label The Minimalistic Wine Label Approach: Are We Heading Toward Textless Labels?

Uproot Wines’ True Back Label of its Rose Wine

From a regulatory perspective, surely a textless label would make labeling specialists’ jobs easier and cut down the average processing time of a label (if not eliminate the processing time altogether). However, given that there are some requirements that must appear on a label, it is unlikely such requirements would disappear, especially after one considers the history and posture of these mandatory statements. If we were to ever come to a point where mandatory information was not required to be placed directly on a label, but could instead be viewed through a scannable Quick Response code (“QR code”), it is likely there would still be a level of government regulation with the type of information that could be presented (as well as the type that must be presented) by the scannable code. I can almost imagine a similar online submission process to COLAs Online, entailing the enduser to submit the information that appears through the scannable barcode to the government for prior approval.

From a marketing perspective, however, there are some features that producers may always want to keep on a wine’s label, such as a vintage year or an appellation of origin, so it is possible this aforesaid textless label may never appear discounting any regulatory reasonings. For some wines, the appellation may be the strongest branding for a wine produced and whose grapes are grown in a notable region whereas, for other wines, the brand name will always take precedence. These may be textual elements that, for marketing and other brand awareness purposes, may never leave a wine’s label. For Uproot, I think there is something to be said about placing a purely pictorial or graphic reference on the true front of its wine bottle as the focal point of the consumer, especially without referencing its brand name or producer (at least, not on the true front label). Its labels altogether are far off from a “textless” wine label, however its approach to minimalism is entirely respectable.

The age old story is, however, the law is persistently slow to catch up to innovation. Albeit, it is enjoyable to think about the possibilities that wine labels could take on. It should be noted, however, that it is TTB’s position that relevant sections of 27 CFR and the advertising provisions of the Federal Alcohol Administration Act (“FAA”) do apply to advertisements in social media, inclusive of QR codes and other 2D mobile barcodes that link to content that is a “written or verbal statement, illustration, or depiction that is in, or calculated to induce sales in interstate or foreign commerce.” See Use of Social Media in the Advertising of Alcohol Beverages.

Photographs property of Uproot Wines.

DISCLAIMER: This blog post is not intended as legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

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Alcohol Facts Wine Bottle 750ML 14 Alcohol by Volume TTB Updates Information on Optional Alcohol Facts StatementsLast week, TTB updated its FAQ section on optional Alcohol Facts statements to include more information on Alcohol Facts statements (or alcohol facts panels). The updated information includes TTB’s insights on whether per-serving and per-container alcohol content information can be placed on labels and in advertisements which do not contain nutrient content information for the beverage. In its updated FAQ section, the agency stated that the use of per-serving alcohol content information on labels or in advertisements (without providing nutrient content information) is permissible provided such is truthful and accurate as per Serving Facts statement under TTB Ruling 2013-2. In its updated FAQ section, TTB noted that such information should be included under a heading titled “Alcohol Facts” (as opposed to “Serving Facts”) and must include the serving size, the number of servings per container, and the percentage of alcohol by volume statement along with a numerical statement indicating the amount of fluid ounces of pure ethyl alcohol per serving. See TTB: FAQs: Alcohol Facts Statements: AF1. The updated information on TTB’s Alcohol Facts statements FAQs includes information on the type of serving size to use if Alcohol Facts statements are included on labeling or in advertisements, how to calculate the number of servings per container and the fluid ounces of alcohol per serving, and whether a new application for a label approval must be submitted upon using an Alcohol Facts statement, among other related information. (Generally speaking, should a beverage alcohol label Alcohol Facts statement be formatted as depicted in TTB’s FAQ section AF9, a new COLA will not be required for beverage labels adding an Alcohol Facts statement; however, the agency notes that should the alcohol facts statement be formatted or positioned in a way other than those outlined by TTB, such will require a new COLA and will be approved on a case-by-case basis. See id.)

Last year, TTB issued a ruling titled “Voluntary Nutrient Content Statements in the Labeling and Advertising of Wines, Distilled Spirits, and Malt Beverages” as an interim policy on the use of Serving Facts statements with respect to the labeling and advertising of alcohol beverages. See Voluntary Nutrient Content Statements in the Labeling and Advertising of Wines, Distilled Spirits, and Malt Beverages. While this ruling spoke mostly to serving facts/nutrient content (i.e., calories, carbohydrates, fats, and protein) with respect to beverage alcohol products, the agency did remark that “[t]ruthful, verifiable numerical statements of alcohol content may be included in Serving Facts statements as an option.” Id. The interim policy is pending the completion of a final rule, in which TTB “propose[s] to issue regulations requiring Serving Facts statements on alcohol beverage labels.” Id. (According to TTB’s 2007 proposed rule entitled, “Labeling and Advertising of Wines, Distilled Spirits and Malt Beverages,” such would include information on the number of calories as well as the number of grams of carbohydrates, protein, and fat; alcohol content and the percentage of alcohol by volume would also be permitted in the Serving Facts statement. The agency received a significant amount of comments in response to the proposed rule, which can be viewed on the Regulations.gov website. See Labeling and Advertising of Wines, Distilled Spirits and Malt Beverages (Serving Facts Labeling.) While the ruling discussed including alcohol by volume statements (as well as fluid ounces of alcohol per serving) in the context of Serving Facts, the ruling did not address the ability to create an Alcohol Facts statement (as TTB’s FAQ section now acknowledges).

The flexibility to (voluntarily) include an Alcohol Facts statement is great for the industry, especially for those products with previously approved COLAs. TTB’s new FAQs are generally straightforward for those who wish to add the voluntary Alcohol Facts statement without nutrient content information. Further to the point, the addition of such a statement can usually be done without the need for a new COLA, which helps both industry  as well as TTB with saving time and curbing additional costs. Instituting a mandatory Serving Facts statement requirement, however, has proven quite contentious among industry members (as demonstrated by many of the comments to the proposed rule). It is true that mandating such will require industry members to redesign labels as well as analyze the contents of their products, both of which are timely and costly, however perhaps such initiative is yet another acknowledgement that the consumer demand for truth in labeling is dramatically increasing. Several weeks ago, I discussed FDA’s proposed redesign of its nutrition facts panel and the impact on the alcohol beverage industry. See Is TTB Next? FDA’s New Proposed Nutrition Label and its Effects on Alcohol Beverages. While it is not likely that the agency is close to establishing an FDA-styled nutrition facts panel, it is conceivable that the Alcohol Facts statement and the Servings Facts statement are both a step in this direction, i.e., a step in the direction of full(er) disclosure.

Photograph property of the Alcohol Tobacco Tax and Trade Bureau.

DISCLAIMER: This blog post is not intended as legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

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A Trademark Double Entendre: N2 Versus Into Wines

Here’s an interesting scenario. Can a trademark applicant’s mark ever have multiple meanings? And can such dual-meaning mark be issued a trademark even if one of its meanings is deemed merely descriptive? In a recent appeal to the United States Patent and Trademark Office’s Trademark Trial and Appeal Board, administrative trademark judges said yes (and yes).

Recently, a company named N2Wines LLC filed a trademark application with the U.S. PTO to register the mark “N2WINES” for “wines sold in kegs” under Class 33, but the U.S. PTO refused registration pursuant to Section 2(e)(1) of the United States Trademark Act (15 U.S.C. §1052(e)(1)) on the grounds that the name N2WINES was merely descriptive. See In re N2Wines LLC, Serial No. 85680969 (April 5, 2014) [not precedential]. The applicant requested reconsideration, which was refused, and subsequently appealed.

A name is considered merely descriptive of goods or services if the term conveys the “immediate idea of an ingredient, quality, characteristic, feature, function, purpose or use of the goods or services.” Id. citing DuoProSS Meditech Corp. v. Inviro Medical Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012). However, it is important to note that a name is not merely descriptive in its abstract form—it must be considered in relation to the goods or services for which a registration is sought, as well as the context in which the name is being used in relation to the goods or services and the potential connotation or implication the term would have to an average purchaser of the good or service due to the manner of its use. If the term has meanings in other contexts, such is not necessarily deemed as controlling.

“Wine” in “N2WINES” was quickly recognized as a generic term, thus the Board reasoned it must determine whether “N2″ was descriptive of the applicant’s goods (N2, or more properly N2, is the symbol for nitrogen gas). The examining attorney submitted evidence, including that from the applicant’s website as well as other advertisements and internet articles, to support that nitrogen is an inert gas used in wine tapping systems. Based on the evidence submitted by the examining attorney, the Board determined that nitrogen does have some significance with respect to wine sold in kegs because nitrogen may be used to tap or preserve the wine.  However, the Board highlighted that applicant’s mark did not include the word “Nitrogen” and instead considered the possibility that, while N2 is the symbol for nitrogen gas, the symbol takes on a different meaning and would be perceived by potential consumers in a way that is not merely descriptive of the goods. As such, the Board determined that there was sufficient support to find that when “N2″ was used in the mark “N2WINES,” there was a double entendre meaning, “Into Wines.” See id. at 5, citing Appeal Brief, p. 10, 12 TTABVue, 11. (Applicant submitted a significant number of examples of both domain names and registered marks in which “N2″ is construed as “Into.”)

In its opinion, the Board clarified the meaning of double entendre with respect to marks as per the following:

‘A ‘double entendre’ is a word or expression capable of more than one  interpretation. For trademark purposes, a ‘double entendre’ is an expression that has a double connotation or significance as applied to the goods or services. The mark that comprises the ‘double entendre’ will not be refused registration as merely descriptive if one of its meanings is not merely descriptive in relation to the goods or services.’ Id. citing TMEP § 1213.05(c) (Oct. 2013).

N2 Wine Label Approval A Trademark Double Entendre: N2 Versus Into Wines

The Board also recognized that, in the past, several other marks had been registrable as double entendres, including SUGAR AND SPICE (for bakery products), SHEER ELEGANCE (for pantyhose), SHEER PERFECTION (for makeup for legs), FAST’N EASY (for pre-cooked meats), and HAY DOLLY (for self-loading trailers for hauling bales). Id. at 5–6. Further to the point, the Board noted that “into,” which it defined as “involved with or interested in,” allows “N2WINES” to be a double entendre meaning “into wines.” Id. at 7. “The unitary phrase ‘into wines’ implies that consumers of applicant’s goods are interested in wine. It does not immediately convey an idea of any ingredient, quality, characteristic, feature, function, purpose or use of the goods, and thus is not merely descriptive of applicant’s goods.” Id. The Board thus reversed the refusal.


Nitrogen Periodic Table of Elements A Trademark Double Entendre: N2 Versus Into Wines

The interesting aspect about the label for N2WINES is the N2 symbol on N2WINES’ label resembles the Nitrogen element’s format on the Periodic Table of Elements. When I originally read the Board’s opinion, I did not review the label, as such was not included in the opinion (the mark was filed as “Standard Character Mark” and thus did not include the design or artwork featured in the label). See photo at right as a sample of Nitrogen the element in its Periodic Table of Elements format (i.e., not the inert gas). Had applicant filed the mark along with the design, perhaps it is possible the outcome may have been different—although still room for a double entendre argument, especially considering the applicant’s ability to identify and reference the breadth of the use of “N2″ as a substitute for the more formal “Into.”

Photos property of Alcohol and Tobacco Tax and Trade Bureau and Boston University Chemistry.

DISCLAIMER: This blog post is not intended as legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

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TTB Suspends Ruling on Bottling Taxpaid Wine in Growlers

Several weeks after TTB announced its third ruling of Year 2014, the Bottling Taxpaid Wine in Growlers or Similar Containers for Consumption Off of the Premises, TTB issued a subsequent announcement declaring the suspension of the ruling. (The original ruling held that filling growlers and similar containers for consumption off of the premises is classified as a bottling activity, subject to the taxpaid wine bottling house provisions of the Internal Revenue Code of 1986; this required businesses that fill growlers to apply as a taxpaid wine bottling house, as well as label their growlers, maintain certain records, and comply with additional regulations.) On Friday, April 25, 2014, the agency determined that it would be more appropriate to engaged in rulemaking with respect to growlers so TTB can “modernize [its] regulations to specifically address the filling of growlers with taxpaid wine.” See TTB Suspends Ruling 2014-3 Pending Rulemaking. TTB believes that, by pursuing the rulemaking process, the agency will be able to evaluate what types of regulations are not unduly burdensome to alcohol beverage businesses while still protecting the government’s revenue. Id. You can read more about the original ruling from March 2014 here.

TTB cites the concern of industry members for its reason for suspending its ruling on bottling taxpaid wine in growlers. In particular, industry explained the ruling is unduly burdensome for industry members, especially for members in states where state and local laws permit the bottling of growlers without additional requirements (i.e., application for a taxpaid wine bottling house, labeling, etc.). See TTB Suspends Ruling 2014-3 Pending Rulemaking. In its suspension, TTB responded that its existing regulations were intended to monitor “traditional” taxpaid wine bottling activities, as opposed to the filling of wine growlers. As such, the agency will engage in the rulemaking process to formalize a rule that is more flexible and appropriate for the industry with respect to wine growlers. 

Rulemaking is the process agencies use to promulgate regulations. Generally, a proposed rule will be published in the Federal Register, and will invite comments from the public so the agency can evaluate the thoughts and concerns of interested parties as well as additional data. After a specified period of time, the agency will review the submitted comments and respond to each. Subsequently, the agency may modify the proposed rule, taking the public comments into account, and will publish a finalized rule in the Federal Register. This is a fairly common process, and one from which TTB hopes to receive adequate insight from interested parties like consumers, industry members, and State regulatory agencies. 

DISCLAIMER: This blog post is not intended as legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

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Lindsey Zahn Attorney Cornell Law School Alcohol Beverage Law Author of On Reserve to Speak About Beverage Law at Cornell Law School

It is quite an honor to share that I have been invited to speak at Cornell Law School on behalf of The Society of Wine and Jurisprudence and The Cornell Sports and Entertainment Law Society. The topic is “Pursuing a Career in Beverage Law,” and will include discussions about following a law career in a niche practice area as well as a survey of the different facets of alcohol beverage law. The event will take place next week on Tuesday, April 15, 2014 at 11:15 AM to 12:15 PM in the Saperston Student Lounge of Cornell Law School. While the talk will have a focus on alcohol beverage law, this session may be of interest to any student or young attorney passionate about working in a unique area of law.

Next week will be my first time back in Ithaca since my undergraduate days and, as such, I am very excited. For me, Cornell is the birthplace of both my interest in wine and the law, as well as the point of initial introduction to wine law. For those reasons (and many others), Ithaca is an extremely special place to me.

The Societies and I are working on a list of questions that may guide the discussion about beverage law and/or pursuing a niche practice. We welcome and appreciate all comments, especially those from industry members, practicing attorneys, and current students, in the formation of what we hope will be a very valuable conversation. Please feel free to add any suggestions for topics or discussions. Thank you kindly, well in advance.

DISCLAIMER: This blog post is not intended as legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

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Domaine Mouton Givry Label Burgundy France 249x300 Chateau Mouton Rothschild Tells Burgundy Wine Producer to Change its NameBordeaux estate Château Mouton Rothschild recently sent a Burgundy wine producer, Vintner Laurent Mouton, a cease and desist letter, asking the producer to stop use of the name “Domaine Mouton” on its wine labels. The Château claimed that use of such a name on wine labels was “unauthorised reproduction [and] amounts to counterfeiting of pre-existing brands belonging to Rothschild companies.” See Change the Name of Your Wine, Rothschild’s Chateau Tells Burgundy Wine House. The Château believes that wine drinkers may mistake the Domaine Mouton labels for being related to Rothschild’s Chateau Mouton Rothschild or Mouton Cadet brands. In addition, the Château argues that Domaine Mouton’s labels display a “clearly parasitic” attempt to reap the benefits of “the great Mouton’s coattails.” Id. Château Rothschild is asking Domaine Mouton for 410,000 Euros in damages and interest over the course of three years. See id.

Laurent Mouton and his family own thirty acres of vineyard land in Givry and produce roughly 60,000 bottles of Pinot Noir and Chardonnay each year under the Domain Mouton label. See id. He is the fourth generation of his family to produce and bottle wine under the family’s name Mouton. Id. To the contrary, Château Mouton Rothschild owns 207 acres in the Pauillac appellation of Bordeaux and “produces 500,000 bottles per year of what is considered one of the world’s greatest clarets.” Id. Mr. Mouton declares that the amount of damages for which the Château is asking would likely bankrupt his company.

In an attempt to reconcile, Mr. Mouton offered to change his labels to read, “Domaine L. Mouton,” to which Château Rothschild has not responded. Further, the Burgundy producer believes that the Château’s concerns would be more reasonable if the two were both located within Bordeaux (or Burgundy) and offering their wines for around the same price points. 

This particular dispute reminds me a lot of the recent and alleged suit on behalf of French Champagne maison Veuve Clicquot against a smaller Italian sparkling wine producer, Ciro Picariello. See Champagne House Veuve Clicquot Sues Italian Sparkling Wine Producer Over Label. In that case, the Champagne house sued a family-owned winery for use of a certain color on its sparkling wine labels. The Champagne house was supposedly concerned that the orange label of Ciro Picariello’s sparkling wine could cause consumer confusion with its Reims-based Champagne product, thus causing economic damage to Veuve Clicquot. Whereas, in that particular case, the concern was over a color as opposed to the name, the disagreements do present certain similarities. For example, both instances entail a legal measure against a smaller wine producer in a different region. In addition, both tales are pursued by powerful wine producers with immeasurable resources. (Note: At publication, it is unclear if a suit has been pursued on behalf of Veuve Clicquot; shortly after news erupted regarding an alleged lawsuit, the maison denied filing suit against the Italian producer and instead maintained that it had contacted Ciro Picariello to note the similarities of the labels, and to ask if there was a possibility Ciro Picariello’s labels could “evolve” to avoid any potential confusion between the two wine brands. See Veuve Clicquot Denies Lawsuit Over Label.)

But some differences do exist here. In this case, the issue at stake pertains to the wine’s name—not the color of the label. But this is not the first time the Château has pursued legal measures to protect its name. In 2012, the Baron Philppe de Rothschild group lost a legal battle against the New Zealand wine producer of the “Flying Mouton” label in which the French company alleged the New Zealand’s wine resembled its Mouton Cadet brand. Id. The New Zealand court reasoned that the use of the term “mouton,” which is French for sheep, may have derived from the vineyard’s prior use as a sheep farm. With the New Zealand court’s ruling in mind, it certainly seems that a family name for a vineyard should prevail especially considering that Domaine Mouton has been established for several generations. Further to the point, it is possible that the New Zealand court may have implied the Rothschild name (or the Mouton name when used in conjunction with the Rothschild name) holds greater significance than the Mouton name by itself. Irrespective, the above represents another instance where a larger wine power seeks to exert its resources over those of a smaller producer in an effort to purportedly protect its trade name.

Photo property of the Alcohol and Tobacco Tax and Trade Bureau.

DISCLAIMER: This blog post is not intended as legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

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New York is home to over four hundred wineries as of March 2014. See New York Wine and Grape Foundation: Wineries by County. While this number may not compete with the amount of wineries currently housed by California, it makes New York home to the greatest number of wineries on the East Coast. See North American Winery Total Passes 8,000. As of Year 2013, the state boasted wineries in 53 of its 62 counties (this number includes both traditional wineries and satellite stores or branch offices). See New York Wine and Grape Foundation: Wineries by County. This is a significant increase from 1976, or the year the New York State Farm Winery Act was passed. See id. (compare with fourteen wineries in nine counties, circa 1976; compare also with 125 wineries in 24 counties as of Year 2000). 

In 2012 alone, New York State boasted that its wine industry had a state-wide economic impact of $4.8 billion. See, e.g., Economic Impact of Grapes, Grape Juice, and Wine: $4.8 Billion. Its nearest East Coast competitor, the state of Virginia, maintains that its wine industry had an economic impact of just under $750 million in Year 2010. See Virginia Wine Industry Jobs Grow by 50%; Economic Impact Doubles, New Study Finds.

While the aforesaid numbers speak considerably well of New York’s wine business, in an industry so highly regulated by federal, state, and local officials, one must not rely on numbers alone. The laws, rules, regulations, and state agencies must also be in favor of a growing industry, as well as support and cultivate development and expansion. That being said, there are a number of examples of how New York’s wine industry has significant backing from the state government, as well as from numerous private ventures.

New York’s Farm Winery License and Other Legislative Measures

Perhaps the most significant development in New York’s legal landscape with respect to fostering the growth of the state’s wine industry is the amendments to the farm winery license. The farm winery license, which (generally speaking) allows a licensee to manufacture wine and sell their wine to wholesalers or retailers, has a significantly reduced annual license fee ($175 as opposed to $1,075) and requires a lower surety bond ($1,000 as opposed to $10,000) than that for a full New York State winery license. While farm winery licenses are limited to businesses that produce 150,000 finished gallons of wine per year or less, the simplified requirements and costs of the farm winery license serves as a great initiator for smaller wineries in New York State. N.Y. ABC LAW § 76-a.

Further, in June 2011, Governor Cuomo signed a bill called the Fine Wine Bill, which significantly reduced the regulatory requirements for the state’s farm wineries. See Friendlier Legislation for New York State Farm Wineries. Since becoming law, the farm winery license now allows a licensed farm winery to open branches within the state without needing to apply for additional licenses (and such branches enjoy the same privileges, such as the ability to conduct tastings, as the licensed farm winery), among several other advantages and relaxed requirements. See Analyzing N.Y.’s New Wine Law. The aim of this new legislation was to foster and cultivate the growth of New York’s industry, especially among smaller producers. Effectively, the revised farm winery law places tools in the hands of smaller, local wineries and gives them the power to grow, expand, and promote their wines throughout the state with reduced entrance hurdles. (Note: Since the enactment of the Fine Wine Bill in 2011, the number of New York farm winery licenses has grown from 195 licenses in 2011 to 273 licenses in 2014. See Number of Farm-Based Breweries, Cideries, Distilleries, and Wineries Increase 72% since 2011.)

To another extent, there have been a number of legislative measures enacted in the last year or so that continue to encourage the growth and development of the state’s wine industry. Of particular and relevant interest are the following:

  1. The sale of wine at roadside stands (the roadside farm markets bill); and
  2. The rebranding and designation of the state’s wine trails.

The farm markets bill (now law) authorizes a roadside stand to sell wine from up to two licensed farm, special, or micro wineries within a twenty-mile radius of the stand. See S-2617/A-1512. This new measure increases the availability and awareness of locally-sourced wine, generates what the bill’s authors anticipated would be increased revenue for both the stand owner and the wineries, as well as contributes to the excise tax collection on behalf of the state. See, e.g., New Laws to Help New York Vintnerssee also Legislative Gazette: New Laws to Help New York Vintners (NY). The roadside farm market license is currently available from NYSLA and costs $100 per year as of April 1, 2014. See Application for Alcoholic Beverage Control Retail License: Roadside Farm Market.

The rebranding and designation of New York State’s wine trails is supported by four bills, now law. One of the new laws expands the Shawangunk East Wine trail. See A.4616-a/A.2790. The other new laws include expansion and renaming of the The Niagara Escarpment Wine (now to be called the Niagara Wine Trail Ridge), The Niagara Wine Trail (to be renamed Niagara Wine Trail Lake), and The Chautauqua Wine Trail (to be renamed Lake Erie Wine Country Trail) and establishes establishes the Adirondack Coast Wine Trail. See A02024A/S01095-A; A05721/S03923-B; and A03758/S01013-B. Further, Governor Cuomo’s dedication to New York State wineries is also demonstrated through Taste NY, which is a program designed to promote awareness and availability of New York-made food and beverage products (including wines) among local residents and visitors to the state through retail venues and events.

From a more academic perspective, Cornell University has shown great initiative in the State with the introduction of its 3,900 square foot teaching winery on its Ithaca campus. See Cornell Shows Off New Teaching Winery. While the teaching winery aims to instruct students of the university using small-scale winemaking equipment and winemaking processes typical of small lot sizes, the true gem of Cornell’s commitment to the wine industry stems from its four-year viticulture-enology major that exposes students to both the theories and practices of grapegrowing and winemaking. Id. Cornell’s teaching winery facility remains the only university teaching winery in the Eastern United States.

Legislative Drawbacks

While the above highlights some of the major legislative (and academic) measures taken to support New York’s growing wine industry, the state is not without its faults (from a legislative perspective). For example, New York has a proposed “at-rest law” which would require alcohol beverages delivered to New York retailers to be “housed” or to “rest” at the premises or warehouse within the state, owned by a licensed New York State wholesaler, for at least twenty-four hours before delivery to a retail licensee. See S3849-2013; Regional Macroeconomic and Fiscal Impacts of New York’s Proposed At-Rest Legislation. While the State cites concerns regarding authenticity or legality of products and proper payment of taxes as reasons why such an amendment should be enacted, there is much opposition both intra and interstate. See, e.g.New York Alliance of Fine Wine Wholesalers: The Impact of Proposed “At Rest” Legislation on New York State’s Economysee also New York Cork Report: Op-Ed: In New York, a David & Goliath Story Unfolds. Without getting into further detail, this is a significant proposal to amend New York’s legislation, one that (as many argue) has a serious potential to negatively impact many aspects of New York’s alcohol beverage industry. See, e.g., Baffling Wine Bill Leaves Sour Taste (arguing that the proposed at-rest law could increase the cost of wine and could cause smaller distributors to go out of business or avoid the New York market). Although this proposed law does not directly regulate the state’s winegrowers, the inevitable flow of wine products through the three-tier distribution model will impact growers and producers to the extent that the types of wines offered at retail to consumers could be more limited should the bill become law.

Further, although still pending a declaratory ruling, there seems to be much concern about NYSLA’s position with items like third party marketers and Internet wine sales. See, e.g.New York Crackdown on Internet Wine Sales Just Another Slap in the Face to the State’s Wine Lovers.

While the state’s wine industry is clearly booming from a growth perspective, many of its legislative initiatives must still be altered to recognize and respect that New York’s wine industry is a major contributing factor to the state’s economy. Further to the point, laws and regulations that foster the growth and expansion of a New York wine industry will only assist state producers gain additional international recognition, as well as remain one of the top domestic producers of grape wine. It seems indisputable that Governor Cuomo’s regime supports the advancement and prosperity of New York’s wine industry—this is evident through recent bills passed into law under his governorship—however, the development of counterproductive laws and bills, such as the “at rest” law, could be a restraining factor in the state’s successes.

In 2013, the American Wine Consumer Coalition graded states on the basis of how friendly each was to consumers with respect to wine accessibility. While California unsurprisingly received an A+, New York ranked number 28 in friendliness and received a grade of a D+. See New Report Reveals Which States Are Friendliest to Wine Consumerssee also The 2013 State-by-State Report Card On Consumer Access To Wine. The reasoning? New York’s prohibition of grocery store wine sales and refusal to allow retailers to directly ship to consumers. See Wine-Drinker Lobby Gives California Laws an A+; New York Gets a D+. Note: Virginia, New York’s closest East Coast competitor, received a grade of A+ for consumer accessibility to wine. For a state that boasts the third highest domestic production of wine, and is the greatest producer of wine on the East Coast, I have one word: Ouch.

In other words, New York, we have much work to do.

DISCLAIMER: This blog post is not intended as legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

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Three renowned wine regions recently signed the Joint Declaration to Protect Wine Place & Origin. By signing the Declaration, the new signatories—the American wine region of Santa Barbara County and the French wine regions of Bordeaux and Bourgogne/Chablis—become part of a global movement to protect wine place names and ensure that such are not used improperly or in a misleading fashion.

While the declaration contains signatures of recognized and respected wine regions—including, but not limited to, Napa Valley, Douro Valley, Sonoma County, Walla Walla Valley, and Willamette Valley—the addition of great regions Santa Barbara County, Bordeaux, and Bourgogne/Chablis simply reinforces the movement’s success and prominence. Further, the recognition of the Declaration by such prominent regions indicates how important truth in labeling is to the consumer as well as regional producers. More importantly, the supplementary endorsers confirm the underlying importance of accurate labeling in the context of global international trade, particularly with respect to provincial characteristics of the land that simply cannot be reproduced or manufactured, which is (more often than not) a struggle for producers of many global wine regions to properly protect in international commerce.

More appropriately:

By becoming signatories of the Declaration, members agree that geographic names are fundamental tools for consumers to identify the special wines associated with specific winegrowing regions. And as such, they commit to work together to bring the necessary awareness and advocacy to bear to ensure these names are protected and respected. From great winegrowing regions to consumer rights groups to everyday wine consumers, more and more are making their voices heard in the campaign to protect wine place names. 

Two Renowned Wine Regions Join Growing Global Coalition to Protect Wine Place Names.

The addition of wine region parties to the Joint Declaration to Protect Wine Place & Origin is likely to become more and more frequent as wine regions grow and as wine trade expands and evolves. Specifically, it is not inconceivable that more wine regions will join the Declaration as signatories to fortify their recognition in the global market. This may even become more prevalent as wine regions enter markets where producers from other regions use similar or the same names on wine products that do not originate from the actual region that gained place and name recognition.

DISCLAIMER: This blog post is not intended as legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

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New TTB Ruling on Bottling Taxpaid Wine in Growlers

Environmentally-conscious and corkscrew-phobic wine lovers alike will be thrilled to hear that TTB issued a ruling on March 11, 2014, allowing the filling of wine growlers by TTB-licensed taxpaid wine bottling houses (“TPWBH”). The ruling is in response to a new Washington state law allowing state-licensed wineries to sell wine off-site in kegs or “sanitary containers” (i.e., growlers) for off-premise consumption.  Oregon passed a similar law in April 2013.  

Continue reading the full article at Bevlog.

Reprinted with the permission of Lehrman Beverage Law, PLLC.

DISCLAIMER: This blog post is not intended as legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

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