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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

NewsLetter2Cover

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

Proposed Crowdfunding Rules – Small Business and Craft Brewers

AventinusGlass

The Jumpstart Our Business Startups Act (the JOBS Act) was put in place with the purpose of doing what the name suggests. One portion of the Act would allow companies to raise money via crowdfunding without registering the offering with the SEC. Small, often interesting/innovative, businesses, such as craft breweries, have been using crowdfunding platforms to raise money by offering “investors” goods and swag in return for the “investment”. “Investment” is used in quotations because it has really been more of a donation. Those who contributed to these endeavors gained no equity ownership in the company seeking to raise funds. On Wednesday, the SEC issued more than 500 pages of  proposed rules, discussion and analysis that would permit companies to offer and sell securities by way of crowdfunding. The public now has 90 days to comment on the proposed rules. After reviewing the […]

By |October 25th, 2013|Blog|0 Comments

North Carolina Set to Implement New Growler Laws

Updated and more specific growler laws take effect in North Carolina this Friday, October 25, 2013. The laws will allow retailers, such as bottle shops and grocery stores, to fill growlers up to two liters (approx. 68 ounces). Raleigh, NC’s News and Observer, however, reported that not all retail store owners were terribly excited about the implementation of the new laws. The report cites that the regulations will create issues with time and space. These issues arise as a result of the new sanitation and labeling requirements.

Let’s start with the new definition of “growler”. 04 NCAC 02T .0308 now defines a growler as “a refillable rigid glass, plastic, aluminum or stainless steel container with a flip-top or screw-on lid that is no larger than 2 liters (0.5283gallons) into which a malt beverage is prefilled, filled or refilled for off-premises consumption.” The words in bold are additions to the rule.

The […]

By |October 22nd, 2013|Blog|0 Comments

Could Craft Brewers Take a Page from the NBA Lockout?

craft-beer-week-new-york-city-photo-ccDuring the recent NBA lockout, a number of the league’s stars found ways to stay at work by participating in charity games across the country and other summer league events.  Kevin Durant, Russell Westbrook, LeBron James, Chris Paul and Carmelo Anthony played in Oklahoma City and raised $100,000 for the Single Parents Support Network of Oklahoma City.  Durant, James, Anthony, Paul, Chris Bosh, Dwyane Wade, John Wall and Amar’e Stoudemire got together in Miami to support Mary’s Court Foundation.  More stars met in Philadelphia, Minneapolis and San Jose, among other locations.

The situations are certainly different, craft brewers are not directly at odds with the federal government and the shutdown did not occur as a means of burdening the brewers.  But the result is similar.  Many craft brewers are left with innovative brews that cannot reach the consumers due to the cessation […]

By |October 16th, 2013|Blog|0 Comments

Label Approval – For the States, Federal Government or Both?

Earlier this year, the Alcohol and Tobacco Tax and Trade Bureau (TTB) clarified that neither a certificate of label approval (COLA) or a certificate of exemption is required for malt beverages that will not be shipped or delivered for sale or shipment into another state.  However, this doesn’t necessarily mean that if you plan to distribute your product only within your home state that you are automatically exempt.  Many states still rely on, and default to, the federal regulations and require TTB label approval.  Nor does it mean that it’s not best to seek label approval if you are in a state that does not require it.  This can however, play a role in the timing of when you may seek label approval.  For example, if you want to get a product on tap in your state quickly without waiting for label approval but you also want to check your […]

By |September 24th, 2013|Blog|0 Comments

A Primer on Trademark Law and Recent Trademark Disputes in the Beer Industry

Please read the upcoming issue of American Brewer magazine for Ross’ article about how to best select your mark and avoid dispute.

When seeking trademark protection, it is important to begin with a distinctive mark. Trademark laws are designed to protect consumers from being confused about the source and affiliation of a given product or services. A consumer looking for a product build upon quality should not be tricked into purchasing goods or services that are confusingly similar to another that may simply be leeching off of the goodwill of the other. This also has the secondary effect of protecting the goodwill created by trademark owners that have built their business on quality.

Why Register?

—Federal registration is prima facie evidence of the registrant’s ownership of the mark. 15 U.S.C.S. § 1057(b). Federal registration of a mark constitutes constructive nationwide use of the mark from […]

By |August 12th, 2013|Blog|1 Comment