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.
Here is the bare minimum anyone in the beer business should know — about beer trademarks. Click below to see a video, from yesterday, by Dan Christopherson, a trademark lawyer at Lehrman Beverage Law in the Washington, DC area.
Go ahead and fire away with any additional questions, and I will try to cajole Dan into answering them here. Many thanks to ShipCompliant, and Alex Oxford in particular, for making this happen.
* This, for anyone disappointed about the headline.
A federal judge in California dismissed a class action suit against Jim Beam on August 21, 2015. The suit—Welk v. Beam Suntory Import Co.—concerned whether Beam’s use of the term “handcrafted” on its Bourbon labels is misleading to consumers. The court’s holding—that it is not misleading—and the case’s dismissal mark yet another win for Beam in a series of consumer fraud suits that have been brought against it (as well as a host of other alcohol producers) since 2014. Beam also did very well in this similar case, concerning Maker’s Mark.
Welk began back in February 2015, when Plaintiff Scott Welk filed a class action complaint alleging that Beam’s use of the term “handcrafted” on its Bourbon labels was misleading. According to Welk, “handcrafted” means “created by a hand process rather than by a machine.” Welk argued that the “mechanized” and “automated” process that Beam uses to make its Bourbon could not fairly be characterized as “handcrafted.”
In its defense, Beam claimed that TTB federal approval of its label provided it with a safe harbor that insulated it from label-related consumer fraud claims. Beam also argued that reasonable consumers are not actually misled by the term “handcrafted” because it is merely puffery that is not relied upon by consumers when they make their decision to purchase.
The side label, in recent years, says HANDCRAFTED – FAMILY RECIPE as above. For what it’s worth, note that Beam seems to have started using this language around 2011. It does not appear, for example, on this 2007 approval.
In a short and to-the-point opinion (less than 8 pages), Judge Larry Alan Burns of the Federal District Court for the Southern District of California sided with Beam, holding that the term “handcrafted” is “‘generalized, vague, and unspecified’ and therefore inactionable as ‘mere puffery.’” Because “handcrafted” is merely puffery, Beam’s use of the term on its Bourbon label does not violate California’s false advertising or unfair competition laws, and does not amount to an intentional misrepresentation.
Interestingly, the court held separately that the safe harbor doctrine did not insulate Beam from the consumer fraud labeling claim here. Judge Burns stated that “the TTB [COLAs] don’t reveal whether the TTB specifically investigated and approved the veracity of Beam’s use of the claim at issue.” In this case and some others, the courts ponder what TTB did and did not do, but don’t seem to look into it.
Dismissing all of the Plaintiff’s claims with prejudice, Judge Burns ended his opinion boldly, stating that “No amendment [to the Plaintiff’s complaint] would cure [the Plaintiff]’s allegation that Beam’s use of the term “handcrafted” is misleading.”
Federal district courts adjudicating these types of label disputes have split over whether TTB label approval provides alcohol producers with a safe harbor from litigation, and whether terms such as “handcrafted” and “handmade” are non-actionable puffery.
Judge Burns’ conclusions that the safe harbor doctrine does not apply and that the term “handcrafted” is non-actionable puffery are consistent with the conclusions made by Judge Houston in his recent decision regarding Maker’s Mark’s use of the term “handmade” on its label. Nowrouzi v. Maker’s Mark Distillery, Inc., 2015 WL 4523551 (S.D. Cal. July 27, 2015).
Putting last week’s decision into perspective, we now have three judicial decisions concluding that TTB label approval does not insulate producers from the potentially misleading claims on their labels (Welk, Nowrouzi, and Hofmann v. Fifth Generation, Inc.), and three decisions concluding that terms like “handcrafted” and “handmade” are mere puffery and therefore non-actionable (Welk, Nowrouzi, and Salters v. Beam Suntory Inc.). Only one of these decisions—Hofmann—has gone entirely against the brand (Tito) to the point where the court found that the safe harbor doctrine did not apply, and, that the specific term at issue is not puffery.
The takeaway from the whiskey cases, decided so far, seems to be that, independent of TTB’s review system, courts seem generally willing to find that “handcrafted” claims amount to non-actionable puffery.
I have been a lawyer for almost 30 years now. We don’t handle a lot of litigation — but this controversy du jour raises a question. Do not court claims need to pass some red face tests? Can we allege just about anything we want, if we have a PC and a filing fee? AKA: Does this (above) look like Bud to you? If not, should legal theories be so divorced from reality that a multinational company should be able to tell a tribunal that it does?
Bud has recently alleged that the above labeling and theming tends to confuse people about how closely this beer relates to “The King of Beers.” In the August 19, 2015 TTAB Opposition, A-B lashes out, claiming that The Queen of Beers has no COLAs: “upon information and belief, Applicant had not applied for – and still has not applied for – a federal Tobacco Tax and Trade Bureau label for its beer, which label is required to distribute alcohol interstate in the United States.” But A-B should definitely get a copy of LabelVision. With LabelVision it took less than a minute to find several such Queen of Beer COLAs, issued more than six months ago, for the She Beverage Company of Lancaster, California (defendant/applicant).
A-B claims it has been using KING OF BEERS as a trademark since at least 1951, and has about six relevant registrations, many of them incontestible. A-B asserts that “Applicant’s THE QUEEN OF BEER mark so closely resembles Opposer’s prior used and registered KING OF BEERS Marks as to be likely, when used in connection with the goods set forth in the Application, to cause confusion, or to cause mistake, or to deceive under [the Lanham Act].”
The St. Louis Post-Dispatch talked to the trademark applicant, and she said:
“There is no ‘Queen of Beer,’ and we’re a female-owned company,” she said. “I didn’t anticipate Budweiser getting their panties in a bunch.”
Rose said she’ll continue to pursue the trademark.
“It’s important for us to fight,” she said.
A-B already owns well more than 40% market share of beer in many countries. Should the company also be allowed to own KING OF BEERS, QUEEN OF BEERS, and — to use their own words — other terms “indicating supremacy, preeminence, and/or eminency” as to beer?
Poll here. TTAB documents available upon request.
Here we are, checking in a year later, after this post on GMO labeling. TTB still does not allow GMO labeling of the sort depicted above. This sort of labeling seems to be sweeping across the grocery store, but not in the alcohol beverage aisle. We have at least two bases for saying this. First of all, there is this recent Needs Correction (NC) notice. It says the GMO talk is misleading, therapeutic and not acceptable.
Second, we checked through LabelVision and see essentially no GMO-related labels. It is pretty amazing that few if any seem to have slipped through, even though this list tends to say quite a few alcohol beverage products meet the Non-GMO Profect standards.
This NC notice is good because it also happens to cover a few other issues. It reminds us that grape varietal terms should not be used on flavored wine products. It also reminds us that if you have something like a margarita-flavored wine product, it may be necessary to clearly mention that it’s a “wine cocktail.”