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About Ross Appel

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Don’t pay an attorney just to file your trademark application(s).

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I recently reviewed a listing of applied-for trademarks which demonstrate that many attorneys are clearly not providing their clients with substantive information regarding whether their marks are likely to register and why/why not.  Many attorneys clearly don’t take the time to discuss the trademark process with their clients.  They don’t seem to provide information regarding other marks in existence that may be cited in a refusal based upon a likelihood of confusion.  They don’t seem to explain that a descriptive mark cannot be reserved using an intent to use application or that if that mark is eventually put to use, the effective date will switch to the date it is placed in use rather than the date the application is filed (and thus falling behind any later-filed marks).  After seeing a number of these marks that suggest a […]

By |March 12th, 2014|Blog, Uncategorized|3 Comments

Florida Beer Compromise?

With the legislative session underway and the insulting HB 1329 filed, now is probably a good time to look at the other malt beverage bills out there to see what they are up to. HB 1329, filed on Monday, may have the affect of being so utterly ridiculous that it diverts attention from the other malt beverage bills. Those bills are likely to get some edits and turn into “compromises”.  HB 7075 may be that compromise. The folks behind the drafting of the Big Beer Bill may hope they can have people “look over there” while unfavorable changes are made to the other malt beverage bills.

Here is a rundown:

HB 7075 – The “Compromise” Bill to HB 1329? (filed last Friday, February 28. 2014)

  • Allows self-distribution of up to 3,000 gallons
  • Allows for a “taproom” on the brewery premises without the need for a separate vendor’s license
  • Brewers could sell their own […]
By |March 6th, 2014|Blog|0 Comments

The Big Beer Bill to Stifle Florida Craft Beer was Filed in the House

The bill we knew was coming (“Big Beer Bill”) in the aftermath of the self serving comments from Eric Criss just a month ago was filed in the Florida House of Representatives yesterday.  Criss is president of Beer Industry of Florida, Inc., a Tallahassee-based trade association of Florida’s largest beer distributors.

Criss (not so) implicitly gave the beer distributors credit for drunk driving fatalities, arrests and convictions dropping.  He added that it was the three tier system that followed prohibition and the role of distributors that helped curb social problems such as high-volume drinking, domestic violence and worse (credit to him for an attempt to instill fear in the hearts of unsuspecting readers that have not yet reached the part of the article that says who he is and why he is writing the piece).  Of course, the misplaced argument fails to mention that other laws […]

By |March 4th, 2014|Blog|15 Comments

Old School Beer Fest

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By |February 21st, 2014|Uncategorized|0 Comments

Is a Mandatory Three Tier System Necessary?

The three tier system has been in place since the repeal of Prohibition. Some advocate for it (large distributors and the brewing giants whose beer they distribute) and others don’t believe a strict mandatory three tier system is necessary to accomplish the goals it is designed to promote (me, craft brewers).  I am writing this to provide just a bit of background, a bit of opinion and to perhaps stimulate discussion.

The Three Tier System: (Shortly) How/Why?

Prohibition was a disaster.  As it neared its end, John D. Rockefeller, Jr. commissioned a study by Raymond Fosdick (attorney) and Albert Scott (engineer) to provide the states with guidance on regulating alcohol.  The 21st Amendment ended prohibition and provided the states with control over regulating the production and sale of alcohol. Fosdick and Scott made it the highest priority to prevent a system that allowed tied-houses.  A tied […]

By |January 27th, 2014|Blog|6 Comments

Trademark Series: Beer and Wine

In the most recent issue of American Brewer Magazine, I mentioned that the fact that a mark is used and registered for wine or distilled spirits does not necessarily bang a death knell for a craft brewer’s ability to use a similar or identical mark.  I’ve recently discussed geographically descriptive trademarks and refusals of beer marks based on a likelihood of confusion with clothing items.  This will discuss why a similar, or even identical, mark registered for wine or distilled spirits should not (and does not) mean a mark for beer and/or brewery services cannot register and acquire nationwide trademark rights.

The Refusal:

The USPTO will generally issue a refusal that compares the marks (how they look, sound, etc.) and then compares the similarity of the goods. The goods comparison generally goes as follows:

 BeerAndWineRefusalSample

The X-Search database evidence that […]

By |January 22nd, 2014|Blog|1 Comment

Brewery Trademarks Refused Based on T-Shirts?

An examining attorney with the United States Patent and Trademark Office (USPTO) recently issued a suspension letter to an applicant for beer based, in part, on a pending application for hats and shirts.

Applications for marks relating to goods and services in the beer industry are very seldom, if ever, refused based upon similar marks being registered for clothing.  However, precedent for a suspension and potential refusal does exist.  It’s a situation that is covered by section 1207.01(a) (Relatedness of the Goods or Services) of the Trademark Manual of Examining Procedure (“TMEP”).

The section reads as follows:

In some instances, because of established marketing practices, the use of identical marks on seemingly unrelated goods and services could result in a likelihood of confusion. See In re Sloppy Joe’s Int’l, Inc., 43 USPQ2d 1350, 1356 (TTAB 1997) (“he licensing of the names and/or likenesses of well known persons for use on various goods and services is a […]

By |January 10th, 2014|Blog|0 Comments

The Geographically Descriptive Trademark

I was recently in Boston and had some great beer. Something I saw on that trip and then a discussion I had with David Minsky of the Broward/Palm Beach New Times inspired this article. David and I spoke about the recent trend of cease-and-desist letters in the brewing industry and whether it may soon affect South Florida’s breweries that are seeking to trademark names like Miami Pale Ale and Miami Brewing Company. As I drove through a few towns north of Boston, I passed Boston Beer Works and thought people might assume that Boston Beer Company, the company behind Sam Adams and Angry Orchard, was also behind Boston Beer Works. Boston Beer didn’t want people thinking that was the case. It sued Boston Beer Works twenty years ago for trademark infringement. I’ll get to that. First, some background on the relevant law.

Trademarks may fall within four categories with respect […]

By |January 3rd, 2014|Blog|0 Comments

Year in Beer(law)

A look back at some of the craft beer industry’s legal issues (w/ pictures) in 2013 (click on the links below for more coverage):

The people behind Headwaters Brewing came up with the Headwaters name in 2009 and went public with the name in 2010 at the Haywood County Chamber of Commerce business start-up competition. In January 2012, before Headwaters turned pro,Victory Brewing Company released its Headwaters Pale Ale. But Victory also filed a federal trademark application. Shortly after opening, Headwaters received a cease-and-desist letter from Victory. Headwaters remarked that it was a “great lesson in intellectual property protection for do-it-yourself and small business guys” and changed the brewery’s name to BearWaters.

In March, DuClaw Brewing of Maryland sent a cease-and-desist letter to Ska Brewing after registering the EUPHORIA mark for beer. However, Ska claimed use of Euphoria for its pale ale back to 2005 while DuClaw’s application claimed use […]

By |January 3rd, 2014|Blog|10 Comments

Komlossy Law, P.A. Newsletter, Volume 1, Issue 2

We are proud to present the second issue of our Komlossy Law, P.A. Newsletter.  In this issue we discuss:

  • The evolving world of craft beer and intellectual property and consider what issue appears to loom on the horizon.
  • The SEC’s proposed Crowdfunding rules and the concerns that investors and issuers alike may have with the proposed rules.
  • Whether the recent ruling in Tassel Ridge Winery, LLC applies to the craft beer industry.

Give it a read and give us your feedback – questions and comments are always welcome.

Click here to read the Newsletter

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By |December 18th, 2013|Blog, News|0 Comments