Loading...

Follow On Reserve: A Wine Law Blog on Feedspot

Continue with Google
Continue with Facebook
or

Valid

According to Wine Business, the Oregon Liquor Control Commission (“OLCC”) submitted a letter to TTB in regard to a Napa Valley wine company’s alleged non-compliance with TTB labeling and advertising regulations. The complaint argues that the Elouan and The Willametter wines produced by Copper Cane LLC of Rutherford, California—which boast Oregon American Viticultural Areas (“AVAs”)—may not have been fully finished in Oregon. Purportedly, bulk wine produced in Oregon is purchased by Copper Cane LLC who vints and bottles the wine at its winery in Rutherford. These same wines contain Oregon AVAs, such as Willamette Valley, Umpqua Valley, and Rogue Valley.

In order for a wine to be labeled with an American Viticultural Area as its appellation, 27 CFR 4.25(e)(3)(iv) requires that the wine be fully finished within the State (or one of the States, in the case of multi-state AVAs) within which the labeled AVA is located. There are minor exceptions (cellar treatment pursuant to 27 CFR 4.22(c) and blending which does not result in an alteration of the wine’s class and type under 27 CFR 4.22(b)). The letter sent to TTB indicates that, while Copper Can LLC may process some of the wine grapes in Oregon, it is unclear whether those grapes are fully finished into wine before leaving Oregon or if the wine is finished in California (which would likely disqualify the wine from asserting the AVA under federal regulations). This is information that should be available through the winery’s records (for bottling, bulk transfer, and production).

Interesting to note is that the labels cited by Wine Business show the terms “Vinted & Bottled by Elouan, Rutherford, California” (labels also shown in this article). TTB’s regulations are very specific with respect to using either term “vinted” or “bottled.” (TTB regulations also clearly define terms like cellars, prepared, produced, made, and blended.) Each word is very carefully defined by the agency. For example, 27 CFR 4.35(a)(2)(v) defines “vinted”—when used in the name/address statement on the label—to mean that “the named winery, at the stated address, subjected the wine to cellar treatment in accordance with §4.22(c).” (Per the paragraph above, cellar treatment in compliance with §4.22(c) is permitted for wines labeled with AVAs if the cellar treatment did not occur in the state of the named AVA.)

It is not uncommon for us, as wine lawyers, to see some of our clients improperly use the term “vinted” on their wine label drafts (pre-submission to TTB). Generally, it is an innocent mistake (i.e., looking to another winery’s label as a guideline and/or misinformation about TTB’s definition of “vinted”). For Copper Cane LLC, cellar treatment in compliance with 27 CFR 4.22(c) would be permissible under federal regulations on its AVA-labeled wines; however, the issue in the letter cited by Wine Business seems to be that OLCC and similar believe more than just cellar treatment may occur or have occurred outside of Oregon.

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

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

Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

It is with great excitement that I share the launch of Jus Vini, The Journal of Wine & Spirits Law. Jus Vini is the new international journal on wine and spirits law edited by the University of Reims’ Wine & Law Program — A Jean Monnet Chair. The journal is a bilingual, peer-reviewed legal journal published twice a year (June and December) and promotes legal scholarship in the field of wine and spirits law. (The journal is published in both English and French.) Jus Vini‘s first issue was published in June this year and features a great selection of materials from international wine and spirits lawyers and scholars ranging from China to the E.U. to Australia to the U.S. The pieces cover both national and international issues relating to legal updates, discussions on global wine law, and protection of geographical indications. Jus Vini is an essential read for any alcohol beverage lawyer interested in learning more about global issues impacting the industry.

Jus Vini features articles, essays, case law notes, reports, briefs, and book reviews on national and international laws that impact the wine and spirits industries. Subscriptions are available online through Directabo, via phone (+33 (0)4 93 44 06 96), or by bank transfer. For more information, please see the Subscription Form or contact jus.vini@wine-law.org.

Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

The USPTO Trademark Trial and Appeals Board (TTAB) recently issued three relevant decisions to the wine, beer, and spirits industries. The decisions are summarized below.

  • In In re Harlequin Enterprises Limited, Serial No. 86761280 (September 7, 2017) [not precedential], Applicant (Harlequin Enterprises Limited, a purveyor of romance novels) sought to register a design mark (similar to a book spine) that contained the terms VINTAGES BY HARLEQUIN (with the term “VINTAGES” disclaimed) for wine in International Class 33. The Examining Attorney originally issued a refusal under 2(d) of the Trademark Act on the grounds that Applicant’s mark resembled prior registration for the mark HARLEQUIN for liqueur. Applicant appealed to the TTAB and argued that its fame in connection with romance novels made the potential confusion between Applicant’s wine and Registrant’s liqueur unlikely. The Board found that the evidence presented by Applicant was “impressive and undisputed” in regard to the fame of the mark HARLEQUIN with respect to romance novels. See id. at 3. While the Board accepted and did not dispute that Applicant’s fame for the mark HARLEQUIN for romance novels, the Board argued that fame did not make confusion unlikely. Further, the Board said that the marks and devices used in promoting Applicant’s wine (which were not reflected in the drawing page for the proposed registration) were irrelevant to the Board’s analysis. The Board then entered a lengthy discussion in regard to whether or not a likelihood of confusion existed for HARLEQUIN (liqueurs) and VINTAGES BY HARLEQUIN (wines) by reviewing the similarities and dissimilarities of the marks, the relation of wine and liqueur, the amount of third-party registrations that produce both wine and liqueur under the same trademark registration. In the end, the Board found that confusion was likely because the marks were so similar and moved in similar trade channels. The 2(d) refusal to register was thus affirmed.
  • In re Iron Hill Brewery, LLC, (September 8, 2017) Serial No. 86684857 [not precedential], Applicant (Iron Hill Brewery, LLC) sought to register the mark CRUSHER in standard characters for beer in International Class 32. The Trademark Examining Attorney originally refused registration for the mark under 2(d) on the grounds that Applicant’s mark resembled a mark for the registration THE CRUSHER on the Principal Register in standard characters for wines in International Class 33 and that registration would likely cause confusion, mistake, or deception. Applicant appealed and the Board quickly jumped into a likelihood of confusion analysis, detailing the similarities and dissimilarities of the marks and the similarity of the goods/channels of trade/consumers. Not surprisingly, the Board found that the marks were “nearly identical in sound, appearance, and commercial impression” thus weighing heavily in favor of finding a likelihood of confusion. In regard to the similarity of goods/channels of trade/consumers discussion, Applicant determined that a central issue was whether or not there is a “de facto” rule that wine and beer are the same for trademark registration purposes. Id. at 6. Both the Board and the Examining Attorney struck this down, but quoted In re Shell Oil Co. by reasoning that the use of an identical mark can lead to an assumption that there is a common source even when the goods are not competitive or intrinsically related. Id. In short, the Board found that there was a likelihood of confusion between Applicant’s and Registrants marks and thus affirmed the refusal of the Examining Attorney.
  • In In re Fowles Wine Pty Ltd., Serial (September 15, 2017) No. 79157017 [not precedential], Applicant (Fowles Wine Pty Ltd.) sought to register FARM TO TABLE in standard characters for wine in International Class 33. The Trademark Examining Attorney refused registration, reasoning that FARM TO TABLE was merely descriptive of a feature or characteristic of the identified goods and that FARM TO TABLE did not function as a trademark to indicate the source of the goods. Applicant appealed and the Board. Examining Attorney submitted a significant amount of evidence using the phrase “farm to table” in connection with wines. See id. at 2–7. Applicant provided evidence of third-party registrations before the USPTO with respect to other food products that used the phrase FARM TO TABLE or similar. See id. at 9–10. The Board argued that some of the registrations were only issued on the  Supplemental Registrar (not the Principal) and that some of the TSDR printouts did not include, e.g., information on whether or not a mark had acquired distinctiveness under Section 2(f) or if any of the wording had been disclaimed. However, the Board considered much of the table as evidence at face value since the Examining Attorney did not previously object. The Board turned to the more substantial question of whether or not the applied-for mark served as a source identifier with respect to Applicant’s goods. In doing so, it noted that the “central question in determining whether Applicant’s proposed mark functions as a trademark is the commercial impression it makes on the relevant public.” Id. at 12. Upon review of the evidence, the Board agreed with the Examining Attorney that the proposed mark failed to function as a trademark. The Board reasoned that the phrase is used as a statement or slogan by many third parties to indicate local origin of a food or wine and that consumers are accustomed to seeing this phrase used on or in connection with food or wine from many different sources, which cut against the purpose of a trademark (i.e., to identify a single commercial source). After a discussion of mere descriptiveness, the Board ultimately determined that FARM TO TABLE failed to function as a mark as defined by the Trademark Act and was merely descriptive of the wines identified in Applicant’s application. Id. at 21. Thus, the Board affirmed the Examining Attorney’s refusal to register the mark.

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

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

Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Dr. Kevin Fandl, Assistant Professor and Academic Director of Global Immersion Programs at Temple University’s Fox School of Business, recently reached out to share an exciting opportunity in Santiago, Chile this January along with a call for contributes or co-authors.

Temple University’s CIBER is offering Faculty Development in International Business (FDIB): Study the Business of Wine in Santiago, Chile from January 5-11, 2018. He encourages interested faculty members to share the enclosed flyer with other faculty members at their respective universities and institutions. The team has also created a short video about this FDIB: FDIB Chile Video.

In addition, Dr. Fandl is currently developing a series of journal articles focused on the regulation of the wine industry across global sectors. His research focuses specifically on the relationship between wine regulation and innovation. If you have expertise in this or a related area and you would be interested either in sharing your expertise or going so far as co-authoring a piece with him (short practice-oriented piece or academic journal article), he would very much like to speak with you. Please feel free to reach out to him at Kevin.Fandl@Temple.edu.

Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Separate tags by commas
To access this feature, please upgrade your account.
Start your free month
Free Preview