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Archive for April, 2011

Functional Packages, Part 5

A long way from painted urns, or ink on paper, here is another example of innovative, functional, modern, social(?) beverage packaging. My Bud Light encourages the consumer to modify the labeling a little bit. Bud’s press release says:

Message On A Bottle: Bud Light Introduces ‘My Bud Light’ Packaging
New Package Allows Consumers to Add Personal Message on Bottle’s Label

ST. LOUIS (April 1, 2011) – Bud Light, the world’s best-selling beer, is introducing a new way for beer drinkers to personalize their bottles with the brand’s latest packaging innovation, “My Bud Light.”

Beginning April 4, Bud Light 12-oz. bottles will feature the My Bud Light label, which allows adult beer drinkers the unique opportunity to add their own personal touch to the bottle. Using a key or coin, consumers can “write” a message or draw an image on the label.

“This new bottle is one of the many ways we can bring Bud Light’s fun personality to life,” said Mike Sundet, senior director, Bud Light. “Bud Light drinkers are always looking for fun, quirky ways to express themselves, and the My Bud Light bottle offers them a canvas to do just that.”

A Chicago purveyor of other beer-personalization-paraphernalia hastens to add:  “Following BeerTAG’s footprint, the new innovation from Budweiser further confirms the consumer demand for a great beer identification solution.”

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Raging Beer Controversy in Michigan

On or about September 17, 2009, Flying Dog Brewery requested permission to sell Raging Bitch beer in Michigan. About two months later, the Michigan Liquor Control Commission denied the application, asserting: “The Commission finds that the proposed label which includes the brand name ‘Raging Bitch’ contains such language deemed detrimental to the health, safety or welfare of the general public.”

Flying Dog filed a lawsuit last month, in the U.S. District Court for the Western District of Michigan. In a later post, we’ll review the state’s rationale. But for today, we highlight a few of the juiciest portions from the pleadings submitted by Flying Dog (and attorney Alan Gura). The complaint asserts:

Regrettably, the Michigan Liquor Control Commission and its members have taken it upon themselves to control not merely alcoholic beverages, but speech as well. Acting as a censorial board, Defendants wield state authority to impose their personal tastes as a prior restraint against core First Amendment expression that happens to be placed on beer labels.

The supporting memorandum goes on to cite the Staub case wherein the U.S. Supreme Court said:

It is settled by a long line of recent decisions of this Court that an ordinance which … makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.

The memorandum argues that the ban is too broad; “preventing all adults from all access to Raging Bitch [in order to protect some children] is hardly a narrowly tailored restriction.” The Butler case calls back from 54 years ago to remind us “by quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence. … Surely, this is to burn the house to roast the pig.” The brewer’s memorandum concludes:

The First Amendment is incompatible with the notion that government regulators may sit in judgment of a beer label, scrutinizing it for conformance to their personal views on what sort of expression might disturb delicate sensibilities.

If your tender sensibilities are not yet disturbed, you can find other such labels here.

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Hibiscus Wine

This post will start short but is likely to grow long over time. Very long. We will try to show the enormous range of foodstuffs from which wine is produced. With each post we will add to the list, and I predict it will grow way past 50 60. Today we add Hibiscus wine to the list.

  1. Agave wine
  2. Apple wine
  3. Apricot wine
  4. Aronia berry wine
  5. Avocado wine
  6. Banana wine
  7. Blackberry wine
  8. Blueberry wine
  9. Buffaloberry wine
  10. Cantaloupe wine
  11. Cherry wine
  12. Cranberry wine
  13. Dandelion wine
  14. Elderberry wine
  15. Elder flower wine
  16. Fig wine
  17. Gooseberry wine
  18. Grape wine
  19. Hibiscus wine. Made by Collin Oaks Winery of Princeton, Texas.
  20. Jasmine fruit wine
  21. Kiwi wine
  22. Linden flower wine
  23. Lingonberry
  24. Lychee wine
  25. Mango wine
  26. Mangosteen wine
  27. Marionberry wine
  28. Onion wine
  29. Peach wine
  30. Pomegranate wine
  31. Pear wine
  32. Pepper wine
  33. Persimmon wine
  34. Pineapple wine
  35. Rhubarb wine
  36. Strawberry wine
  37. Tomato wine
  38. Watermelon wine

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Design Patents

I got to talking with Dan Matauch the other day. He is a leading package designer in Michigan, at Flowdesign. I would have been impressed enough that he handled the design for Honest Tea. But he also handled Peet’s Tea, and Xango (aka Tiger Blood), and most of the designs really appeal to me. The list goes on and on, with Catdaddy Carolina Moonshine, Blue Ice Vodka, and the not-to-be-ignored Bawls and Stubb’s.

I was fairly surprised to see that Dan worked on the package design for Pama Pomegranate Liqueur — and it had some kind of patent. The March 2010 press release says:

To differentiate its product, PAMA Spirits turned to the expertise of Flowdesign to develop a custom bottle that was both unique and could be patented. … Flowdesign is a unique branding firm where experience is infused in both brand graphics and structural design. Founded in 1997, Flowdesign has led the brand design field in custom structural design with 10 prestigious GPI (Glass Packaging Awards).

It surprised me because the conventional wisdom seems to be that it’s normal to get a trademark related to alcohol beverages — but it’s not realistic to get a patent. The conventional wisdom may be too simple. We have covered several alcohol beverage-related patents in the past, such as Malt Liquor, Cubes, and Fruity Caps. To understand this better, I talked with Paul Hletko. Paul is perfect to dissect this because he happens to be a patent lawyer — and runs Few Spirits (of Evanston, Illinois). Paul explained as follows:

The beverage alcohol business is exceptionally competitive.  Innovative companies are always trying to distinguish themselves to stand out from the competition, while others try to engage in “sincere flattery.”  Brands can go a long way by distinguishing themselves with distinctive and unique propositions, but this can attract copying.  After investing the time and money for uniqueness, it is rare that a brand welcomes a copycat.  Protecting against these problems can be expensive short term, but prove highly valuable long term. One of the first strategies to protect innovation is the use of trademarks.  However, trademarks are “usage” based and thus have certain advantages and disadvantages.  In particular, it can be difficult to gain traction with a new trademark. This short post is not intended to address trademarks – another topic for another day.

Another potential strategy is to seek patent protection for unique and nonfunctional designs.  In the beverage alcohol industry, this typically means unique bottle designs. For example, the PAMA brand secured design patent protection for a new bottle. D598,777 S claims this unique bottle shape, and gives its owner the exclusive right to make, use, or sell bottles with that design for the life of the patent.  Other designs could also qualify for design patents, such as a unique bar top (Blanton’s) or the like. A design patent covers the design of an object, so long as the design is not mandated by the function.  Additionally, the design must be novel as well as not obvious to one of ordinary skill in the art.  Unlike trademarks, however, design patents have a limited life span, and the patentee may be faced with questions about what to do after the patent expires.  But, so long at the design patent remains in force, the owner of the design patent has the exclusive right to make, use, or sell the design.

Unlike trademarks, design patents are based on registration, and prior to registration, the design patent application must be examined to ensure that the design is indeed novel, useful, and nonobvious.  Unfortunately, this can cost money, but the advantage of the exclusive right to make, use, or sell may justify the investment.  If your product is getting a new bottle or other design flourish, you should consider trying to protect the investment. By no means does this brief note apply to all situations, and it is not legal advice, but it should help you talk with your attorney – consult your attorney for guidance on how best to capitalize on your unique situation.

Thus, if one of your brand’s differentiating characteristics is a new bottle design or other similar packaging, consider and evaluate whether a design patent would be appropriate. Paul explained that the cost will likely be significantly lower than the investment in the new design itself (molds, designers, etc.) and the investment may prove highly valuable when the “flattery” starts.

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Wheat Wine

Beeradvocate shows no less than 60 wheat wine brands. The most reviewed is Smuttynose Wheat Wine Ale, as above, at 403 generally quite favorable reviews as of this writing.

But Smuttynose may also be the first, and has the scars to prove it. The New Hampshire beer company has explained:

The much-anticipated debut edition of Smuttynose Wheat Wine, brewed and bottled early in 2005, was delayed for nearly a year due to problems stemming from the federal label approval process. The Tax and Trade Bureau (formerly ATF) rejected our original label approval application, claiming that use of the word wine in a beer name would confuse and mislead consumers and retailers. We didn’t agree (barleywine, anyone?) and appealed their rejection. Ours is the first, but definitely not the last, wheat wine application the federal government has seen, so they had to create new guidelines regarding the use of this name. We did prevail, at last, and the issue has been put to rest, and although there are several outstanding examples of this style offered at brewpubs, we are pleased to say that Smuttynose Wheat Wine Ale was the first commercially bottled Wheat Wine on the market.

Smuttynose Wheat Wine Ale is a unique hybridization of two well-known beer styles, combining the rich, voluptuous taste of a traditional barleywine with the subtle, tart flavors of an American wheat ale, topped off with a healthy dose of crisp, herbaceous hops.

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