Posts Tagged ‘trademark’
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.
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.
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.
It’s not every day that you see COLA news on the front page of the newspaper, but it does happen from time to time. On Saturday, The Wall Street Journal featured COLA news on the front page. The story explained that no less than three companies have been trying to use Buffalo Bill as part of their branding — with two of them fighting it out in court. “The two entrepreneurs are fighting in court for the exclusive right to sell beer that trades on the musky aura of adventure surrounding Army-scout-turned-bison-hunter-turned-sharpshooting-showman William F. Cody.”
Eric Bischoff got his first COLA in March of 2011 (and the second one is here). He is a “former professional wrestling icon.”
While Bischoff already has the COLAs and applied for the trademark, it looks like Mike Darby has been selling beer under the Buffalo Bill name since before Bischoff. But “Mr. Darby failed to get federal approval of his label, as required by the law. (Mr. Darby says he thought the brewer and distributor had taken care of that.)” Darby owns a hotel in Cody, Wyoming “built by Buffalo Bill in 1902.” Darby “had to pull his beer from the market” while awaiting label approval.
The third company is affiliated with Bill Owens, but is not interested in fighting over the brand name. The brewery does not even seem to claim trademark on the brand name. The story says Owens has moved on from making beer and now runs a trade group for craft distillers (“It’s much more fun to be involved with people making whiskey, vodka and absinthe, he says.”) This may allow him to avoid a roundhouse kick, a six-shooter, and the swirling lawsuits.
I would have thought John Robert McCulloch would get his keester sued off. But maybe he’s right and it’s the soda people who grabbed his brand and ran with it. The approval mentions that “Mountain Dew is the brand John McCulloch sold vodka under from 1885 until put out of business by Prohibition.” I’d wager that’s earlier than Pepsi or any of its forebearers put the lithiated green soda into commerce.
As it turns out, Wikipedia confirms that: “The original formula (for the soda) was invented in the 1940s by two Tennessee beverage bottlers, Barney and Ally Hartman, and was first marketed in Marion, VA, Knoxville and Johnson City, Tennessee. … The Mountain Dew brand and production rights were acquired by PepsiCo in 1964, at which point its distribution expanded more widely across the United States.” The Hartmans got the name from “a colloquial term for moonshine whiskey” and got the trademark rights soon after.
The McCulloch website makes it quite clear that Mountain Dew was widely used on spirits well before the soda came along. The site also has a lot of old-fashioned spirits advertising, along with the quaint and none too subtle tagline “The Whiskey Without a Headache.”