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Don’t Mess with a Vampire

undead

I am thinking this may be the best label ever, about lawyers. If I am not mistaken, that is a garden-variety lawyer, right below “Welcome, Trademark Attorneys!” and right above the briefcase. The lawyer just happens to be wearing a pink shirt, white suit, and closely resembles a werewolf.

It all started when Clown Shoes beer company got label approval for a Vampire Slayer beer in 2011. It is important to note that this beer claims to be made with “holy water” and “vampire killing stakes.”

In short order, the company that controls various VAMPIRE-related trademarks, pounced, and pushed Clown Shoes to cease and desist from using VAMPIRE terminology. Here is an example of a recent label approval, for a wine marketed by the company that controls the VAMPIRE mark. Clown Shoes explains:

Vampire Brands and TI Beverage Group, connected companies out of California that primarily market vampire themed wine, were suing us. They came to market six months after Vampire Slayer began distribution with a beer made in Belgium called Vampire Pale Ale, but they filed a trademark application prior to our distribution. Their position was that our use of the name Vampire Slayer was harming their ability to sell Vampire Pale Ale, literally costing them money.

Clown Shoes was not amused, and expressed its dismay on the label above. In addition to the not-so-flattering imagery, the label also says:  “Do we need the undead and trademark attorneys too? Clown Shoes says ‘No, Die Monsters, Die!’ Forces of darkness brought about a change in the name of this beer. …” Clown Shoes caved in because:

we felt that we stood an excellent chance of winning a court battle. Then we found out that litigation could cost between $300,000 to $400,000. … Ummmm… that sounds like stabbing ourselves in the face to cure foot pain. … A settlement, the terms of which I am not at liberty to disclose, was reached with [Vampire Brands] that licenses Clown Shoes to use the name Vampire Slayer. I can say that based on all factors, the Vampire Slayer name will soon be discontinued, despite the licensing agreement.

All of this just goes to show that nobody should mess with vampires, going into a trademark dispute without some protection, or the attorney at Vampire Brands. A good article about the dispute is here. Volokh has some other law-related labels here. And a good, recent, other lawyer-related label is right here.

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alcohol beverages generally, malt beverage


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Beer Pong and Related Patent News

We try to stay on the lookout for good and serious patents related to alcohol beverages. A few good ones are here. Today, we wanted to take a look at the ones that seem even less serious and a bit more, frothy. Dan Christopherson is an experienced trademark lawyer, and a registered patent lawyer, and Dan located a few good examples as below. Dan explained, “With all of the bad press coming out lately reporting craft brewers suing each other for allegedly infringing their intellectual property rights, we thought it might be a good idea to try to lighten the mood a bit.”  With that in mind, here are a few humorous beer-related patent applications Dan came across:

  • Tooth Protector for Beverage Bottle and Beverage Bottle Enclosure” – US Patent Application No. 2012/0225166 by Krag David Hopps. I get as excited as the next guy/girl when I crack open a bottle of craft beer. That said, I have, to date, been able to temper my excitement enough to avoid crashing into and injuring my incisors with a beer bottle. Unfortunately for those individuals who have not shared in my good fortune, to quote Mr. Hopps, “No device has heretofore been available to protect a person’s teeth when he/she is drinking from a glass bottle.”  This device, shown on the left, literally shields a beer drinker’s teeth from a beer bottle while drinking from the bottle. Mr. Hopps’ invention is sure to bring us into the golden age of bottle consumption safety. Good news for those of you with drinking problems.
  • Chewing gum with containing ethanol flavors“ - US Patent Application No. 2013/0034625 by David L. Ross. It is truly unfortunate that this patent application apparently does not include any images because I would love to see what this invention looks like. Mr. Ross has invented a beer flavored gum wrapped in a beer mug/bottle/keg shaped packaging “that encloses between 0.01 milliliters and 2 milliliters of alcoholic beverage [ethanol] in at least one cavity inside the gum.”  Our rough calculations show that you’d have to chew at least 18 pieces of gum to get about the same alcohol content as a single bottle of a popular macrobrew. Better a sore jaw than a sore liver, I guess.
  • Netting system for drinking games” – US Patent Application No. 20120071278 by Andrew Mansfield. We agree with Mr. Mansfield’s sentiment that “a need exists for a cheap, easy to manufacture and an easy to use system that prevents ping pong balls from hitting the surrounding floor during game play.”  As Mr. Mansfield points out, the previous attempt to clean up these games by providing wash cups to clean playing balls before throwing them into an opponents’ beer glass “is inefficient and often ineffective as the wash cups become dirty and contaminated from repeated contact with dirty ping pong balls as the game progresses. In addition, research has shown that the wash cups still hold bacteria, such as E. coli.”  Without going through Mr. Mansfield’s undoubtedly comprehensive research results, we are relieved to hear that hygiene-conscious partygoers will no longer be left out of beer pong games.
  • Beer Pong Table with Cooling System” United States Patent No. 8,235,389, issued to Big Dog Pong, LLC. Big Dog Pong also took great strides to improve the great sport of Beer Pong with this invention. A true visionary, they recognize that playing beer pong on kitchen tables, closet doors, and other homemade tables can “unfairly affect the game” and that “beverages may become warm during play.” Big Dog Pong accomplishes all of this by placing a series of cooling areas into the table top surface of a standardized beer pong table.

We hope this post inspires you toward some frivolous or not so frivolous inventions of your own, or at least provides a welcome respite from the serious side of law, business, and intellectual property.

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Wine Trademarks in China

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All the while you tend your vines, and the U.S. market for the fruits thereof, your precious brand names may be vulnerable to poaching, in the world’s most populous country. Lindsey Zahn points out the risks in a recent article in the Cornell International Law Journal Online. The article is entitled “No Wine-ing:  The Story of Wine Companies and Trademark in China” and it was published on November 4, 2013. It points out the risks and opportunities, and provides a good overview of how China treats wine trademarks, and how that differs from the U.S. system. Lindsey is a lawyer specializing in wine law and food law, and she is a frequent writer on such issues at winelawonreserve.com.

In the article, Lindsey explains:

China follows a “first-to-file” rule for trademark registration. This means that the first person to file a trademark application with the China Trademark Office (“CTMO”) is usually granted the registration rights. Prior use of a mark in commerce generally affords little or no protection to a trademark applicant in China. By contrast, the United States Patent and Trademark Office considers whether the applicant is the first to use or intends to use the mark in commerce.

If a business even contemplates entering the Chinese market, it is generally recommended that a trademark application be filed before any product or service is present in China’s market. Failure to file trademark registration can allow third parties—referred to as brand “squatters”—to register the mark. This presents many problems: the prior registration of the mark can block the true brand owner from registration or force the owner to change its name to enter the Chinese market. Other times, a brand owner is forced to pay exorbitant fees to the third party registrant in order to procure the rights to the mark.

This is an important and timely topic, and the rest of the article is here. TTB has lots of good information about alcohol beverage law in China, here.

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alcohol beverages generally


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Pumpkin Face

Here is Pumpkin Face Dominican Rum. Does it remind me that summer is ending and Halloween is around the corner? No. It reminds me of many other things.

It reminds me that Dan Matauch at Flowdesign has a lot of skill. I especially like the main font.

It reminds me that Mark Itskovitz was serious when he said he was thinking about getting into the spirits business.

It reminds me of the new distiller and former bartender, I met at the ADI conference — at the bar — who said bartenders hate shapes like this because they take a lot of space. But they never go in the trash can.

It reminds me of the Apple-Samsung litigation. If Apple designed this, one might expect Apple to claim a patent on certain orb-shaped decanters.

Finally, it reminds me to thank Ann and Gerard for stopping by yesterday and saying nice things about this blog. Gerard is one of the most famous chefs in the U.S., and Ann makes a pretty good veal dish herself.

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rum


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Old Bay Beer

I do believe this Olde Bay Saison label raises at least a few legal issues. First of all, I sure hope the brewer had permission to use this famous branding. McCormick owns the Old Bay seasoning brand and probably would not have a sense of humor about any unauthorized uses. Even if the beer is loaded up with the same seasoning, and even if the reference tends to be flattering. I can not imagine that changing one letter (from Old to Olde) is likely to help any more. The total production for this ale with spices seems to have been tiny, so that may help somewhat more to avoid problems.

A second legal issue is that, such a beer needs formula approval, before label approval and production. To get formula approval, it is usually necessary to provide a detailed ingredient list to TTB. It can be very difficult for anyone to get ingredient details (beyond what FDA typically requires on a food label’s ingredient list) about famous and protected products like Coca-Cola, Angostura Bitters, or Old Bay. TTB typically needs to check for artificial flavors, allergens, colors, and use-rate limitations, and this can be very difficult to do without a complete ingredient list of the sort that McCormick would be unlikely to provide to the brewer here (The D.O.G. Beverage Co. of Westminster, Maryland). So this raises the question of whether this beer actually contains Old Bay seasoning, or TTB did not require details about all 18 ingredients, or D.O.G. somehow got hold of the ingredient list.

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flavored malt beverage


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