Archive for the ‘malt beverage’ Category
Dan’s Mom will be very proud. Or mortified. He won a big trademark victory today, to make the world safe for nut sacks everywhere.
The US trademark office preliminarily determined that NUT SACK was “immoral” and “scandalous,” as a brand name for beer. Dan went to the mat to protect Engine 15 Brewing Co. and their NUT SACK. The opinion is here (and, ironically, it is much more NSFW than the label itself). In its nether regions it says:
Given the mental images the term “Nut Sack” will likely raise, the weight of the dictionary entries suggests that using this indelicate term may well raise eyebrows at a formal dinner party. On the other hand, in seeking to apply the extremely broad “vulgarity” standard to a slang term, we think it wise to bear foremost in our minds the governing language of the statute (“immoral,” “scandalous”) … . We observe that many slang terms come into the lexicon because the formally correct, clinical word for the thing itself is deemed uncomfortably potent. This seems to be particularly true with respect to parts of the human body, in which case speakers adopt the slang terms precisely because they seem less intense, less indelicate, than the formally correct or technical terminology. Cases of alleged scandalous matter under Section 2(a) of the Lanham Act are rarely simple binary decisions, but involve various shades of grey. With this background, we find that some terms, such as “Nut Sack” appearing within “Nut Sack Double Brown Ale” may seem somewhat taboo in polite company, but are not so shocking or offensive as to be found scandalous within the meaning of the statute.
The TTAB summed up, saying the earlier decision is reversed, and:
We conclude that beer drinkers can cope with Applicant’s mark without suffering meaningful offense. Moreover, the consumer of this product who conjures up body parts or insults is nonetheless still likely to see the mark as an attempt at humor.
I’d better get Dan a t-shirt, at the very least, to commemorate his big victory. I hereby agree to buy up to two t-shirts for Dan, and one for the person who comes up with the best slogan, for the t-shirt and for this defender of the nut sack.
Last week, a federal judge in California tentatively dismissed a class action suit against MillerCoors. Yesterday, the judge made that dismissal final.
The case, Parent v. MillerCoors LLC, began in March when plaintiffs—a class of Blue Moon purchasers—alleged that Miller misled consumers into believing that Blue Moon is a craft beer. Plaintiffs argued that Miller’s reference to “Blue Moon Brewing Co.” on the beer’s label and use of the phrase “artfully crafted” in the beer’s advertising led consumers to purchase Blue Moon believing it was craft. Miller defended that the practice of listing its assumed name, “Blue Moon Brewing Co.,” on its label instead of its full business name is specifically permitted by state and federal law, and that consumers could not reasonably rely on the phrase “artfully crafted” as a guarantee that Blue Moon is craft beer.
Judge Gonzalo P. Curiel of the United States District Court for the Southern District of California tentatively agreed with Miller on both points last week, pending a hearing on the matter last Friday. Apparently, plaintiffs’ oral argument at the hearing failed to change Judge Curiel’s mind, as he issued an order yesterday dismissing the case.
Regarding TTB’s approval, Judge Curiel noted that TTB regulations “specifically permit a beer bottle and outer packaging to show, by label or otherwise, the name or trade name of the brewer.” Because California allows the name of a manufacturer to include a duly filed fictitious business name, Judge Curiel held that Miller’s use of “Blue Moon Brewing Co.”—a name properly registered as a fictitious business name in California—is specifically authorized by federal and state regulations. Accordingly, TTB approval provided Miller with a safe harbor.
Regarding the issue of whether Blue Moon fits within the definition of “craft beer” (a point of contention between the parties), Judge Curiel sidestepped the issue, stating, “… even assuming that there is such a definition, Plaintiff cannot rely on it for their argument” since plaintiffs are not pointing to Miller’s use of the phrase “craft beer,” but instead to their use of the different phrase “artfully crafted.” Regarding Miller’s “artfully crafted” claim, Judge Curiel held that the phrase is mere puffery, as it is not capable of being reasonably interpreted as a statement of objective fact. Unlike objective statements of fact, puffery refers to generalized, vague terms that cannot serve as the basis of a lawsuit.
Plaintiffs did secure one small victory, mentioned in the final order but absent from the tentative ruling: Judge Curiel found that their complaint met the heightened pleading requirements required of complaints that allege fraud. Unfortunately for the plaintiffs, this point is moot, as their allegations (well-pled though they may be) still fail to state a valid claim for relief.
Importantly, Judge Curiel distinguishes TTB approval in this case from TTB approval in Hofmann v. Fifth Generation, Inc., a case involving Tito’s “Handmade” Vodka. In Hofmann, the court found that there is no federal regulation that specifically authorizes the use of “handmade” on the label, and so the safe harbor did not apply. Regarding Blue Moon, Judge Curiel says, “Here, the conduct challenged by plaintiff is the same as the conduct authorized by law: Miller’s listing of ‘Blue Moon Brewing Co.,’ rather than MillerCoors, as the manufacturer on Blue Moon’s bottle and packaging.” Judge Curiel’s opinion suggests that in cases where TTB has duly applied specific regulations, courts will defer to TTB approval and will apply the safe harbor. On the contrary, where TTB does not have specific regulations in place, courts will be skeptical of TTB approval and may require the defendants to show that TTB actually reviewed and approved the statements at issue. The forthcoming decision in Hofmann should shed more light on this particular issue.
Parent was dismissed without prejudice, which means that plaintiffs have 30 days to submit an amended complaint against Miller. The judge directed the plaintiffs not allege claims regarding Miller’s use of “Blue Moon Brewing Co.” or the “artfully crafted” trademark.
A federal judge in California tentatively dismissed a class action suit against MillerCoors on Wednesday. Plaintiffs in the suit—a class of Blue Moon purchasers—alleged that MillerCoors misled consumers into believing that Blue Moon is a “craft beer” by stating on the label that it is brewed by the “Blue Moon Brewing Co.” and by advertising it as “Artfully Crafted.” This ruling could become final as soon as today’s hearing.
Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California framed the issue narrowly: The question is whether MillerCoors is “specifically authorized” to list “Blue Moon Brewing Co.” as the manufacturer of Blue Moon on the beer’s labels. Judge Curiel answered that question in the affirmative, finding that Alcohol and Tobacco Tax and Trade Bureau (“TTB”) regulations “specifically permit a beer bottle and outer packaging to show, by label or otherwise, the name or trade name of the brewer.” Noting that California allows the “true name of a manufacturer” to include a “duly filed fictitious business name,” Judge Curiel held that MillerCoors’ use of “Blue Moon Brewing Co.”—a name properly registered as a fictitious business name in California—is specifically authorized by federal and state regulations. Accordingly, TTB’s approval of the Blue Moon label provides MillerCoors with a “safe harbor” from this type of litigation.
Importantly, Judge Curiel took the opportunity to distinguish Blue Moon’s claims from the “handmade” and “handcrafted” claims at issue in the cases involving Tito’s “Handmade” Vodka and Maker’s Mark. Judge Curiel noted that the conclusion that the safe harbor applies “is reinforced when the facts in the instant case are compared to those in other cases where courts found that the manufacturer’s labeling practices were not authorized by law.” He continues:
In Hofmann v. Fifth Generation, Inc. [involving Tito’s “Handmade” Vodka] the district court found the safe harbor doctrine did not apply where a vodka product was labeled as “[hand]made.” The [Hofmann] court found that no TTB regulation specifically authorized the use of “[hand]made” on the vodka’s label, and that it was “not clear that such representations are necessarily within the TTB’s regulatory purview.” [The court in Nowrouzi v. Maker’s Mark Distillery, Inc. reached the same conclusion.] By contrast, here, federal regulations specifically address which brewer name is permitted to appear on a beer’s label bottle and case or shipping containers.
Judge Curiel’s decision suggests that in cases where TTB has duly applied specific regulations, courts will defer to TTB pre-approval and will apply the safe harbor. On the contrary, where TTB does not have specific regulations in place, courts will be skeptical of TTB pre-approval and may require the defendants to show that TTB actually reviewed and approved the statements at issue. The forthcoming decision in Hofmann should shed more light on this particular issue.
Judge Curiel also found that the term “Artfully Crafted” is mere puffery, and thus non-actionable. Plaintiffs are allowed to submit an amended complaint, so long as it is not based on MillerCoors’ use of the terms “Blue Moon Brewing Co.” or “Artfully Crafted.”
* Not really Judge Curiel, in photo above.
There are something like 25 pending lawsuits, about whether various alcohol beverage labels are misleading.
Right there, that should tell you there is not much safe harbor, even though every one of those labels was federally approved, pre-market. Most of the labels were approved many times over many years.
Of course, the first refuge of every defendant is to argue that heavens no, the label can’t possibly be misleading, because the mighty TTB examined and approved it, after all.
The very recent Beck’s settlement should put this trite notion to rest. Over and over TTB said yeah the Beck’s label is fine, even though it has a bunch of references to Germany and the brand’s history, and even though the beer has been made in the U.S. for many years now. The court approved the settlement on October 20, 2015.
In my opinion, the harbor should not be any safer than the review is rigorous. To the extent TTB carefully focused on the specific issue in controversy, and ruled on it, according to rigorous standards, that would be a different story. But, by contrast, a quick review and a shot from the hip should not a safe harbor make. I don’t mean to be too critical of TTB or A-B. The same parties can also provide a good example of the very opposite phenomenon, where the review is more probing, and the harbor stood up as safe. The Lime-A-Rita case shows this other side of the coin. In the Lime-A-Rita case, the plaintiffs said the label is deceptive because it refers to (Bud) Light, when in fact the product is loaded with sweeteners and is no paragon of lightness. But A-B beat back this challenge, and rightly so, because in this instance TTB did have good, solid, narrow, relevant, rigorous standards, duly applied by TTB and duly complied with by A-B, and so eureka the many TTB approvals did in fact provide a warm and cozy safe harbor.
TTB has narrow, careful rules around many terms such as “straight,” “estate bottled,” chardonnay, Napa Valley, “Late Harvest.” Thus, these are the types of terms that should provide a safe harbor (when properly used and approved, according to the same rules). But, by contrast, TTB nor anyone else has good, solid, rigorous rules around terms such as craft, handmade, handcrafted, small batch, reserve, etc. — and so it is much less clear that a safe harbor should apply. It is true that the terms could be puff, in the absence of such rules, but who ever said it is either black or white, puff or not, all or nothing? Surely there are some terms somewhere in the middle, neither pure opinion nor hard fact. I do agree that many label terms do gravitate toward one pole or the other, and I do agree that such terms should be protected, as either puff or within a safe harbor. But we still need a good plan for the terms somewhere in the middle. Maybe TTB should develop and apply some rigorous rules on such. Or maybe the companies that want to use them should explain what they mean by them, to put them in a comprehensible context.
One more example should make the point. Templeton Rye, like Beck’s, Bass, Kirin and many others, also of course had TTB-approved labels. This did not stop the lawsuits or provide any safe harbor. If there were a safe harbor to be found, anywhere near these controversies, the defense lawyers certainly would have found it.
The Beck’s case underscores one other quandary. It is hard for me to understand how it can be a good, long-term business plan, to take the Beck’s brand, known for being German if nothing else, and blur the life out of it by making it elsewhere. The penalty within the lawsuit is something like $28 million, but the obliteration of the Beck’s identity seems far more expensive in the long term. A-B paid a couple billion dollars for the brand in 2012. I can only assume it is short-term, quarter-to-quarter, propping up the numbers, Wall Street thinking, designed to enrich the near-term stakeholders, at the expense of those who arrive at the punch bowl later.
It is common knowledge that the beer field is crowded, when it comes to trademarks. But many steps further, even the beer-fish-trademark field is crowded, it appears.
And so on. NPR noted:
American trademark law lumps breweries together with wineries and distilleries, making the naming game even chancier. A widely circulating rumor has it that Yellow Tail Wines, of Australia, came after Ballast Point Brewing Co., in San Diego, for naming a beer “Yellowtail.” Ballast Point’s pale ale is now conspicuously lacking a fish-themed name (a signature, if not a trademark, of the brewery), though an image of a brightly colored yellowtail still resides plainly — and legally, it seems — on the label. A spokesperson for Ballast Point said the company could not discuss the matter.