The Buck Bunny didn’t get very far. It stopped not far from this 2006 approval. Maybe the antlers, or the spirits, or Jägermeister got in the way.

A contributor in California was concerned about the spirits added to this product, and the overall appearance. He said:

It seems legally interesting because it seems to contradict the TTB labeling code about wines containing distilled spirits and being similar to distilled spirits. Maybe those rules don’t apply to flavored wines. Also, it reminds me of a Jackelope.

Quite possibly, it also reminded Peach Street Distillers of a Jackelope. Peach Street rolled out their Jackelope Gin about a year later.

The spirits are probably a minor problem, compared to the other issues noted above. It is common to add spirits to wine. It is less common to mention them, but it is usually required, when those spirits are not derived from the same fruit as the base wine. Here it is grape wine with citrus spirits. If it were grape wine with grape brandy, the spirits would be less likely to show on the label.

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It’s a wonder that Red Bull (of Austria) has not yet come out with with an alcohol beverage. It would be likely to be a smash, in that the product is so very popular as a mixer.

Perhaps things are going so well with the energy drink that there is no need to mess with it. But more likely, these two products beat the Austrians to the punch. Miller Brewing Company has approvals for Red Bull Malt Liquor going back at least as far as the early 1980s. Likewise, Majestic Distilling has approvals for Red Bull Vodka going back to 1990 or so.

This Dog Style Vodka is one of the few TTB products to make explicit reference to the famous energy drink.

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I am pleased to share a guest post, from Paul Jorgensen. Paul is an attorney in Washington, D.C. who frequently works with trademarks in the spirits and wine industries. His firm, The Jorgensen Law Firm PLLC, helps clients with trademark, copyright, domain name, contract, e-commerce and online privacy and security matters.

For readers thinking of registering a surname as a trademark for their beverage, please consider a recent case by the judicial branch of the U.S. Patent and Trademark Office (PTO), the Trademark Trial and Appeal Board (TTAB). According to In re Hall Wines, Serial No. 78926151 (February 10, 2009), anything that looks like a surname in your mark must be, above all, unique.

The PTO usually refuses marks that are surnames, reasoning that if the PTO grants registration to that name, others may be unfairly stopped from using their name on their business, products or services. Since distillers and wineries often think of branding their products with family names, famous names, or names of well-known craftsmen, the resulting marks are frequently refused.

So distillers and wineries should have a clear understanding of how the PTO will review their proposed mark. If the PTO thinks your application contains a surname, they will put the proposed mark through four tests, often referred to as Benthin factors after a case with the same name (In re Benthin Management GmbH, 37 USPQ2d 1332, 1334 (TTAB 1995)):

1. How rare is the surname? The PTO will research this or accept evidence from you that shows how many people have this surname. You should be realistic about rarity: the PTO swiftly pulls information from computer databases. If data reveals that only a few people have the surname in the Mark, the PTO reasons that fewer people will be affected by the registration of the surname as a trademark. Greater rareness, then, increases the chances that the PTO will register your mark.
2. Does anyone connected with the applicant have this name? If you do not volunteer the information, the PTO will ask you this question if they think the pending mark looks like a surname. If you answer no and provide evidence that the apparent surname is simply made up or that it refers to something else (e.g., a historic building), the PTO will be less likely to refuse your mark because it is primarily a surname.
3. Does the word have any other meaning than a surname? You should be ready to explain and provide supporting evidence that the apparent surname in your application has a meaning other than as a surname. For the PTO to accept this, the meaning has to be a “recognized” meaning, indicating that the word would be known by many consumers, not just a small niche of them, as having a non-surname meaning.
4. Does the mark have the “look and sound” of a surname? As this question is more subjective than the others, an applicant with all other factors going in their favor may be wise to prepare a good argument that your mark does not look or sound like a surname. Arguing that the mark as a whole or in part is reminiscent or evocative of something else (a city, a car, an animal, etc.), and supporting that with evidence, will help win this factor.

The PTO (or if you have appealed the PTO’s refusal, the TTAB) will balance these four factors to decide whether the mark should register. Gallo, as you might imagine, seems to be safe from this kind of rejection, likely because the winery registered GALLO marks many years ago and built up fame in those marks. Today, however, other vintners who assume they can get a trademark registration in their name may be in for a surprising rejection.

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A lot of labels on this blog speak to men. This one speaks loudly to women. Above are two of four Hello Kitty table wines imported from Italy by USA Wine Imports of New York, NY.

Wiki says Hello Kitty is:

one of many simply drawn fictional characters produced by the Japanese company Sanrio. Designed by Ikuko Shimizu, the first product, a vinyl coin purse, was introduced in Japan in 1974, and in the United States in 1976. … The Hello Kitty line has since developed licensing arrangements worth more than $1 billion a year in sales. Examples of products depicting the character include dolls, stickers and greeting cards to clothes, accessories, school supplies, dishes and home appliances.

This might be good for Valentine’s Day. Sanrio has licensed an awful lot of Hello Kitty products, and who would not enjoy a Saturday afternoon flaunting their Hello Kitty Lawnmower?

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During the past 20 months TTB has approved several dozen absinthe brands. Almost all are produced in Switzerland, France, and the US — points west of the Czech Republic. Above shows two of the earliest-approved products made in the Czech Republic, approved a few days ago. This is significant due to a long rivalry between Czech and non-Czech absinthes. The Czech products are somewhat different, and these Stromu products show it well:  they have added flavors rather than herbs added before the final distillation; the proof is somewhat higher; Djabel suggests lighting the product on fire (back label). The latter is frowned upon by most other producers, to put it mildly. We would also expect many absinthe brands to fight over the trademark rights to the Green Fairy name; this term has long been applied to numerous absinthes all over the world. Here is a list of the first 20 or so absinthe products approved for US sale.

This also shows the massive leadtime sometimes required to bring an alcohol beverage product to market in the US. For Djabel: the importer got formula approval on July 11, 2008 (see item 11 on Djabel COLA); the importer probably applied for formula approval 1-2 months earlier, in May or June of 2008; TTB rejected a label submitted on August 8, 2008 (see item 18.d.); the importer resubmitted the label on September 3, 2008 (see item 20); and TTB finally approved the label on October 23, 2008 (see item 23). This is 5-6 months of hard work with many opportunities for missteps.

Finally, this well demonstrates the recurring trend, to portray alcohol beverages and especially asbinthe as sinful. Djabel’s back label says:

Djabel means “devil” in Czech. … During the dark-ages Bohemian “witches” and pagan worshipers used potions distilled from local herbs including wormwood (artemisa absinthium) as healing tonics and for social rituals. … please serve responsibly the traditional way by flambeing sugar in a spoon …

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A few days ago Liqurious reported a Duff Beer sighting. It appears to be the real thing. There is a video review at iFoods.tv and there is a Duff Beer website here. But alas, this beer will remain a figment of the cartoon. There is nothing very similar approved in the TTB database. The nearest thing is the above keg label, for the beer at Duff’s famous wing restaurant in Buffalo, New York (near and dear to Robert’s heart as it was a mile from the law school campus). We are unlikely to see Homer Simpson’s favorite beer anytime soon, at least in the US. Matt Groening (creator of The Simpsons TV show) has stated that he will not license the Duff trademark for a real beer, over concern that it would encourage kids to drink. Fox TV and Groening sued an Australian producer of Duff in 1995.

The court concluded:

My conclusion is that the breweries have engaged in a course of conduct calculated to achieve and exploit a strong association between their use of the name “Duff Beer” and “The Simpsons”, which in fact is deceptive, while at the same time, hoping to avoid legal liability. In fact, their hope of avoiding legal liability were not realised in that they have breached the Act and the charge of passing off has also been made out.

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Three out of three West Coast vintners agree it’s a recession. Of these, The Ross Valley Winery (of San Anselmo, CA) was first, with TTB approval on May 6, 2008. Concannon Vineyard (of Livermore, CA) was second, with approval on June 3, 2008. TTB approved the label for Woods Lake Winery (of Woodinville, WA) on October 2, 2008.

This tends to show the common, simultaneous rush to grab onto a promising new trend. It also raises the question of how US trademark law would or should handle several wineries embracing one brand name at about the same time.

Update:  Comment from a veteran trademark lawyer.

In this case, the three West coast wineries probably should have conducted trademark searches for RECESSION RED. Had they done so, they would have found that a Sea Cliff, New York company, Books & Tomatoes, Inc., filed a trademark application in March 2008 to register the mark RECESSION RED for wine. This application may cause these other wineries some difficulty. More…

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