Posts Tagged ‘trademark’
Is it just a matter of time before TTB is scutinizing cannabis labels — for sneaky references to — wine?
I hope so. That would be great.
Did TTB approve the label yet? Not that I can see. I don’t find any Indica label approved for this Colorado brewery so far. But I do find this Dank label, which is pretty close. The label mentions a run-in with “the man” and pounds of resinous west coast Cannabacae. Dad and Dudes (the brewer) did a wonderful job of securing some trademark rights in this important term (DANK) sure to be much and more in demand in the future. But the label oddly implies that the company has a trademark registration on the term DANK in and of itself, when it does not appear that anyone does. I wonder if D&D’s registration will be sufficient, someday, to block pot purveyors from using the term DANK as part of their branding, and if pot will be considered highly-related to beer/wine/spirits.
Thanks to LabelVision, it’s quite easy to see that TTB has allowed only two “cannabis” labels so far: vodka with cannabis sativa, and Cabernet Franc with notes of cannabis (“pairs well with baked food or an after dinner smoke”).
There are quite a few Indica labels (not including the one in the drinks business article). There are plenty of pot labels wafting around already, and it seems clear there are many more on the way, in one form or another.
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.
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.
The proliferation of breweries and the pressure for them to continuously turn out new styles of beers has created a trademark minefield for names. “Once you come up with an idea, then there’s just this fear that someone else beat you to it,” [Patrick] Mullane says. “Beer names are completely off the wall because there’s just so many of them out there.”
Most breweries will head to sites like ratebeer.com, beeradvocate.com, or Google to get an idea of whether something is already taken. Port City Brewing Company always goes the step further of having its lawyer look into potential names—although not every brewery does this. “You really have to have a more in-depth search that’s done by a professional, someone who knows what they’re doing as far as these trademark searches go,” founder Bill Butcher says. “It’s not something a layman can do an effective job at.”
In 1985, only 188 beer trademark applications were filed in the U.S. Last year, there were more than 4,600. And this year, the number is on track to surpass that, says beer attorney Dan Christopherson, who works for Lehrman Beverage Law in D.C. and specializes in trademarks. (Yes, beer trademarks are enough of an issue that there’s a lawyer who specializes in them.) Christopherson works with about 15 breweries in the D.C. area in addition others around the country.
“It comes up quite a bit,” Christopherson says of brewery trademark disputes. “It certainly makes the headlines a lot more frequently now, but I anticipate that there’s a lot of them, just from my own experience, that get handled behind closed doors.”
The full article is here. Dan is well on his way to being a leading authority on beverage trademarks in general and beer trademarks in particular.