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Horses, Bourbon, Kentucky

I stumbled upon an interesting article in the Kentucky Journal of Equine, Agriculture, and Natural Resources Law of all places. Even though it’s based in Kentucky, I am startled to see that perhaps Mark Brown missed this, in the wee hours of the night, when he combs through the booze press near and far.

The article is entitled “‘Handmade’ or ‘Made By Hand’: Assessing Alcohol Labeling Practices and Evaluating a Popular Consumer Class Action.” It came out during the past year or so. I have followed the handmade litigations, a lot, in these pages. So I don’t want to rehash that stuff. I will mostly highlight a few points in this law review article, by then law student Hannah Simms. She says:

  • “In 2013 alone, the alcoholic beverage industry in the United States generated nearly $456 billion in total economic activity.” This seems mighty high to me.
  • “… courts have been entirely inconsistent on whether or not to apply safe harbor provisions contained in a majority of state deceptive and unfair practice laws.

Noting that the trends are not yet settled, the author wraps up by saying:

If the courts are unwilling or unable to address the situation, the responsibility to take action to protect the industry must shift to the TTB. The TTB could provide clarification of the COLA approval processes that seem to be a hang up for courts. The agency could also opt to issue definitive rulings that provide guidance to industry officials on the correct use or understood meaning of common terms used on labels. This would not only give TTB officers some direction when approving or denying COLAs, but it would also give manufacturers an opportunity to protect themselves and avoid these suits that involve costly litigation since they would have a better understanding of the acceptable use of the terms. If this problem continues unaddressed, liquor consumers and connoisseurs will come out the real losers, because whether manufacturers are forced to go through a costly re-labeling process or continue to litigate these issues in court, it is sure to affect the market price of our favorite beverages.

Since the publication of this article, the pace of the alcohol beverage labeling litigations seems to have eased up markedly, especially since very few courts seem willing to dole out harsh outcomes, beyond the heavy costs of litigation in general.

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How Old is that Old Charter?

The plaintiff in a would-be class action lawsuit against Sazerac voluntarily dismissed all his claims in late January, ending the litigation. The case (Parker v. Buffalo Trace Distillery, Inc. et al.) began in November of last year, and concerned a subtle change on the label of Sazerac’s “Old Charter” brand of bourbon whiskey. The older and newer labels are above, side by side.

Among the various changes, the old label says, “AGED 8 YEARS,” while the new label simply displays the number “8.”

Plaintiff Nicholas Parker alleged that the Old Charter bourbon sold under the new label was no longer aged for 8 years, and that Sazerac’s continued use of the number “8” on the label caused consumers to believe that the bourbon was aged for 8 years. Sazerac responded with a motion to dismiss the complaint, alleging that Alcohol and Tobacco Tax and Trade Bureau (TTB) approval of the label provided Sazerac with a “safe harbor” from Mr. Parker’s claims.

Just two weeks after Sazerac filed its motion to dismiss, Mr. Parker voluntarily dismissed the action. This voluntary dismissal meant that the court did not have to rule on the merits of Sazerac’s safe harbor defense, or Mr. Parker’s claims. If the Tito’s “Handmade” Vodka cases are any indication, it is likely that the safe harbor defense would not have insulated Sazerac in this case. It would seem that the parties reached a settlement, although the terms of any such settlement will likely remain private. Old Charter drinkers should keep an eye out for future label changes, which might indicate the terms of a settlement reached.

The voluntary dismissal notwithstanding, Mr. Parker’s claims raise an interesting issue: Shouldn’t TTB have a policy for this sort of thing? As it turns out, TTB does. TTB’s general stance has been that unexplained numbers on spirits labels are prohibited. That is, if you want to say “8,” you need to explain the significance of the number (e.g., “AGED 8 YEARS,” or “A BLEND FROM 8 BARRELS”). Take Jack Daniel’s, for instance:

While the number “7” appears prominently, the context (i.e., “Old No. 7 Brand”) makes it clear enough that “7” is part of the brand name, not the age of the spirit.

Re-examining the Old Charter labels, the new label does not seem to fall in line with TTB’s tenet. Although Sazerac’s incorporation of the unexplained “8” did not lead to a label rejection in this instance, it probably goes a long way toward explaining why Mr. Parker pounced on Mr. Brown.

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alcohol beverages generally, whisky


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Johnny Love Vodka Wins “Sexy Lips” Trademark Appeal Against Jim Beam

Johnny Love Beverage Company LLC (“JL”) and Jim Beam Brands Co. (“Beam”) are fighting over the right to use “sexy lips” imagery on flavored vodkas. JL’s logo (the subject of U.S. trademark registration no. 4,044,182; shown below left) dates back to 2005, and is described by Johnny Love’s creator and namesake Johnny Metheny as “definitely sexy.” Metheny apparently felt the same way about Beam’s new logo, adopted in 2011, (shown below right), and sued Beam in federal district court for trademark infringement, false designation of origin, and unfair competition.

jllips After filing suit, JL promptly moved for preliminary injunctive relief, essentially requesting that the court order Beam to stop selling products with Beam’s new logo during the pendency of the trial. Beam cross moved for summary judgment. The district court denied JL’s motion, and, in a surprise move, sustained Beam’s motion, dismissing the case and holding, “For reasons articulated in the Order denying the Preliminary Injunction, the Court determines that no issues of material fact remain which could provide Plaintiff a basis for success on any of its claims.”

beamlipsJL appealed the district court’s decision to the 9th Circuit Court of Appeals and, on July 14, 2016, the 9th circuit court issued its ruling, reversing the district court. The circuit court held that the district court improperly applied the preliminary injunction standard to Beam’s motion for summary judgment. The circuit court pointed out that “both [logos] have puckered, human lips as the focal point of their design; the lips have a similar angle and shape; and the lips are color-coordinated with the flavor of the vodka.” Accordingly, the circuit court found that a reasonable fact-finder could determine that Beam’s logo was confusingly similar to JL’s logo and that summary judgment was, therefore, inappropriate.

Most observers know that a lot of the good words are taken, when it comes to that delicious intersection of beverages, brands and trademarks. This case is a useful reminder that a lot of the good images (some but not all sexy lips!) are taken, as well. It is also a prime example of a little guy scoring big points on a behemoth. Judge Wallace mentioned:  “Jim Beam instructed its legal counsel to perform a clearance search for lips designs. The legal department found 40 references to lips for alcohol-related products.”

Note: With JL having now ultimately survived Beam’s motion for summary judgment, experience tells us that it would not be surprising to see the case quietly settle in the near future, with Beam moving to a design less similar to JL’s (not less sexy, just different sexy).

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alcohol beverages generally


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Main Tito’s Case Dismissed

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The main Tito’s Handmade Vodka case has been dismissed, after 19 months of heated litigation. Details are not available so far.

The main case was Hofmann v. Fifth Dimension, Inc. (first filed in state court in September of 2014 then removed to federal court in San Diego a month later). A second and similar case, Cabrera v. Fifth Generation, Inc., also got dismissed on the same day.

On April 22, 2016, both sides in both cases filed joint motions to dismiss. On May 3, Judge Miller of the U.S. District Court for the Southern District of California issued an order in each case, granting the parties’ joint motions.

At one point there were at least eight class action lawsuits against Tito’s Vodka, scattered around the U.S., challenging the very prominent references to “Handmade,” on the product’s labeling and advertising. There are no signs of any label changes, and Google says this has not been in the press to date.

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alcohol beverages generally, vodka


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Red Stripe Wins a Big Round

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Last week, a federal court dismissed a putative class-action lawsuit against Diageo, holding that Red Stripe’s labeling and packaging does not, as a matter of law, mislead reasonable consumers into thinking that Red Stripe is made in Jamaica with Jamaican ingredients.

The suit, Dumas et al. v. Diageo PLC et al., began in July 2015, when class-action Plaintiffs alleged that Diageo deceived consumers into believing that Red Stripe is manufactured in Jamaica. Plaintiffs argued that Diageo’s use of the phrases “Jamaican Style Lager” and “The Taste of Jamaica,” incorporation of the Desnoes & Geddes logo, and allusions to the “spirit, rhythm, and pulse of Jamaica,” misled consumers to believe that Red Stripe was a Jamaican Beer.

Chief Judge Barry T. Moskowitz of the United States District Court for the Southern District of California issued the opinion, disagreeing with Plaintiffs, and holding that “no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling.”

Key to Judge Moskowitz’s decision was the fact that Red Stripe says “Jamaican Style Lager” and “Brewed & Bottled by Red Stripe Beer Company, Latrobe, PA.” Judge Moskowitz concluded that the word “Jamaican” modifies the word “Style” (not “Lager”), and indicates that the product is not from Jamaica. Additionally, Judge Moskowitz concluded that the brewed and bottled by language indicating “Latrobe, PA,” was legible. Judge Moskowitz also concluded that the phrase “The Taste of Jamaica” and the allusions to the “spirit, rhythm, and pulse of Jamaica” were vague and meaningless (i.e., mere puffery), and could not reasonably be relied upon as designations of source.

Regarding the Desnoes & Geddes logo, Judge Moskowitz stated that the “logo itself does not impart information regarding the source of the product.” Judge Moskowitz added, in a footnote, that “the Court doubts that the average consumer would know that the D&G logo is associated with Desnoes & Geddes Limited, the Jamaican brewery, as opposed to, say, Diageo-Guinness.”

Overall, Judge Moskowitz appears to have reached the correct decision. I am, however, skeptical of some of his conclusions. First, regarding the Desnoes & Geddes’s logo, I tend to disagree that the logo “does not impart information regarding the source of the product.” Imparting information regarding the source of a product is the key function of a trademark. Accordingly, I don’t think it’s unreasonable for a consumer to believe that a beer bearing Desnoes & Geddes’s logo (a registered trademark) originates from Desnoes & Geddes in Jamaica.

Second, regarding the brewed and bottled by statement, Judge Moskowitz stated, “It is likely that anyone examining the label carefully enough to read the language on the back of the label would see that the beer is brewed and bottled in Pennsylvania.” I agree that someone examining the back label would understand that the beer is brewed in Pennsylvania, but that’s the problem—the fact that a consumer would have to carefully examine the back label to glean the beer’s true origin suggests that the rest of the labeling and packaging might be misleading.

My two qualms notwithstanding, I believe that this case was correctly decided, based on the “Jamaican Style Lager” language. As Judge Moskowitz noted, consumers are exposed to numerous examples of beers with a geographic indicator modified by the word “style” (Belgian-Style, Cubano-Style), denoting that the beer is not actually made in the geographic location identified.

Plaintiffs have until April 21, 2016, to file an amended complaint, if they so choose.

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malt beverage


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