Archive for September, 2011
TTB has recently liberalized the treatment of personalized labels, such as a wine label with “Happy Birthday Bob.” No longer will it be necessary to burden your company, or the government, with paperwork to cover “Happy Birthday Steve” or Judy, Tom, etc.
TTB announced this change on September 21, 2011 in TTB Guidance 2011-5. The document supersedes a policy from about a year and a half earlier; the 2010 policy required a new approval for just about every variation (such as each wedding, retirement, Bar Mitzvah, graduation, anniversary, etc.). In liberalizing the policy, TTB said:
Our 2010-1 guidance did not allow certificate holders to change the artwork or graphics on personalized labels without resubmission of the labels for approval. We have reconsidered this requirement and now permit certificate holders to make changes to the graphics or artwork on a previously approved personalized label without having to apply for a new certificate of label approval.
The above label, from Llano Estacado Winery, is an early approval under the new policy. The new policy seems due at least in part to pressure from Sen. Schumer. He mounted a vigorous campaign, on this topic, over the past summer. His August 9, 2011 press release, noting the progress, said:
In the case of … personalized labels the TTB agreed with Schumer’s request to streamline the process saying, “Effective immediately, TTB will not require resubmission of labels due to changes in graphics or artwork.” In the past, TTB permitted wineries to simply apply once for approval of a custom label template to ensure it contained the required regulatory and safety warnings, after which the winery could customize and personalize the artwork … to suit the specific event. TTB then changed course to require individual approval of labels when changes were made to graphics and label components apart of the regulatory and safety warnings. By working with industry stakeholders to find ways to streamline approval of these custom labels TTB could, in turn, help ease the current backlog of COLA applications.
The press release also noted:
New York wineries have recently reported that it can take at least one month to receive approval of an electronically-filed COLA application and two to three months for a paper application. Often, when wineries finally do receive feedback, it is with a rejected label and the necessary corrections, and at that point labels must be resubmitted and the COLA process must begin again. The TTB told Schumer itself that they have noticed a significant increase in the typical amount of time it takes for them to respond to requests for label approvals.
So far, it does not seem that the current personalization policy would extend all the way to other masses of labels, such as Molson and Twisted Tea (large numbers of labels with other sorts of small variations).
The 9/11 Memorial wine is made by Lieb Cellars, LLC of Mattituck, New York. In a rare show of unity, it did not go over well with Anthony Bourdain, Dr. Vino, The Colbert Report, or The Christian Post.
Part of the challenge and complexity is that label rules and trends change often. As recently as a few years ago, TTB would balk about pre-eminently famous people, such as these, on alcohol beverage labels. Founding Fathers Beer is bottled by CBC Latrobe in Latrobe, Pennsylvania. I tend to doubt that TTB would allow a President Obama label, even today (except maybe as a caricature), but George Bush, Bill Clinton and the prior Presidents may well be fair game now or soon.
Plenty of regulators don’t know or don’t care about the difference between wine and spirits. Paul Jorgensen reviewed a recent and noteworthy trademark dispute showing this. Paul is a lawyer and he explains as below.
If you’re reaching for a beer, you’ll probably not accidentally grab that bottle of vodka, will you? Looking to pair that great salmon dish with a nice chardonnay usually won’t mean that you accidentally grab a six pack at the convenience store, right? Yes, even though you know that there’s a big difference between beer, wine and spirits (how they are made, sold and who drinks them, for example), you may be surprised to find out that not everyone does. The U.S. Patent & Trademark Office, for example, does not know the difference and continues to demonstrate this with new legal cases decided through its judicial branch, the Trademark Trial and Appeal Board (TTAB).
Who cares? You will if you are trying to register your beer, wine or spirits trademark. Unless you want to waste your money on an application that the PTO will reject, it is increasingly important to do a thorough trademark search first for any confusingly similar marks. That search should cover not only products the same or similar to your product (e.g., beer), but also all other alcohol products (e.g., wine and spirits too) regardless of how distant you think they are from your product. A recent trademark legal case drives this point home once again.
Remember, the PTO will refuse your trademark if it is likely to cause confusion with a confusingly similar mark that was registered or applied for before you applied for your mark. In the case Miguel Torres, S.A. v. Complejo Industrial RM, S.A. de C.V., Opposition No. 91188401 (May 17, 2011), an applicant for the mark GRAN SOL & Design for tequila was opposed by the owner of the registered mark GRAN VINÃ SOL for wines. The wine mark owner thought it would be damaged if the tequila mark was registered.
After finding that the marks were sufficiently similar to cause confusion if they were used on similar goods, the TTAB looked at the similarity of the goods. The TTAB bought the arguments that wine is similar to tequila because 1) they both travel in the same channels of trade (bars, restaurants, liquor stores, and online); 2) the purchasers are ordinary consumers; 3) one product may be substituted for another in drinks; 4) both are inexpensive and purchased on impulse; and 5) consumers either don’t see or don’t note the distinguishing name and address of the bottler, packer, or importer that appear on the label.
Commenting on the same case, The TTABlog observes: “Applicant submitted substantial evidence regarding the strict regulations governing alcoholic beverages in the United States. … The Board was not impressed.” The blog concludes that “The Board’s opinion, with numerous case citations, makes it clear why it is futile to argue that one alcoholic beverage is not related to another for Section 2(d) purposes.”
Never mind all the counter arguments that you can make about your discerning consumers, your distinguishable price points, and your different sales methods. Nope, this is only the most recent of TTAB and court cases that show that the law has a blurry view or is blind to important distinctions in the beverage industry. If you are thinking of a snappy new trademark, you stand warned – do your homework first, or better yet, have an experienced trademark attorney help you understand the risks.