Trademark

Where We Are With 2015 Malt Beverage Legislation

I have been asked a few times in recent days for a quick update of where things generally stand as we near the halfway point in the 2015 legislative session.  This is that:

Senate Bill 186, filed by Senator Jack Latvala, began as the straightforward growler bill that the distribution lobby claimed they would unconditionally support. While it began by simply adding language that would allow 64 ounce growlers and controlled who could sell them and listed labeling requirements, it has grown quite a bit.

It now removes the tourism exception so that the law simply states that a manufacturer may obtain a vendors license on property consisting of a single complex that includes a brewery.  Simply, if you have a brewery, you can have a vendors license on the premises (taproom). This way, the distributors and retailers no longer require clarification from Florida’s ABT to explain what the tourism exception means.

It limits […]

By |March 27th, 2015|Blog|0 Comments

Should Florida Breweries Be Selling to Fellow Breweries?

Breweries are no longer sparsely scattered throughout the state. We are seeing concentrations of breweries flourishing in the Tampa/Saint Petersburg area, Jacksonville, Fort Myers, neighborhoods in Miami and soon Tallahassee. As the number of breweries in Florida grows and areas become more concentrated with breweries, those breweries may consider selling their beer directly to one another, rather than using a distributor for such sales.

Florida Statute §561.42(1) focuses on the tied house evil and prevents integration between the tiers. Florida Statute §561.22 performs a similar function as it prohibits the licensing of a manufacturer or distributor as a vendor and vice versa. Meanwhile, Florida Statute §561.14, in its description of license and registration classifications, notes that manufacturers are “licensed to manufacture alcoholic beverages and distribute the same at wholesale to licensed distributors and to no one else within the state, unless authorized by statute.”

The statute that authorizes manufacturers to distribute to […]

By |August 26th, 2014|Blog|0 Comments

Check out Ross’ Latest Publication on the Craft Beer Industry and Trademark Law – Worry Wort: A Path to Acquiring Trademark Rights in the Craft Brewing Industry

Check out Ross’ latest article, titled: Worry Wort: A Path to Acquiring Trademark Rights in the Craft Brewing Industry. It appears in Volume XXIV, Book 4 of the Fordham Intellectual Property, Media & Entertainment Law Journal.

http://iplj.net/blog/wp-content/uploads/2014/07/C04_Appel_R1.pdf

The article discusses the manner in which trademark law functions, focusing upon the statutory definition of “use in commerce” and related case law developments. It examines the legal framework as it applies in the craft beer context and analyzes an illustrative legal dispute and considers the effect in time, money and frustration that trademark disputes can have on small craft brewery owners.  It also analyzes the early life-cycle of two upstart brewers to demonstrate that rights in a mark must accrue, in certain circumstances, prior to any sales activity.  It further examines the manner in which rights in a mark are acquired in the pharmaceutical industry, where the time from development to marketing launch […]

By |July 15th, 2014|Blog, News|0 Comments

Ross Worked With BeverageTradeNetwork on a Recent Article about Craft Beer Label Design and Requirements

Please click on the following link on BeverageTradeNetwork to read the recent article in which Ross was consulted regarding craft beer label design. The article discusses the process and requirements for label approval, prohibited content on malt beverage labels and why you might consider plans for brewery expansion when designing a label. Let us know if you have any questions or comments!

http://beveragetradenetwork.com/en/article-base/craft-beer-label-design-how-to-adhere-to-state-and-federal-law-and-get-your-labels-approved–351.htm

By |June 9th, 2014|Blog, News|0 Comments

Trademark Series: The Doctrine of Foreign Equivalents

From time to time, we run into proposed trademarks that are in another language. This generally starts a conversation about the doctrine of foreign equivalents. The doctrine of foreign equivalents requires that foreign words be translated into English to determine if there is a likelihood of consumer confusion with a mark already registered or to determine if the applied-for mark is descriptive or generic. When applicants apply for a mark in a different language, they are expected to provide the translation of the mark or else the examining attorney will seek the relevance of the applied-for mark.

There is often question about when the doctrine is applied.  It’s applied when the “ordinary American purchaser” would “stop and translate” the foreign wording in a mark. That isn’t terribly helpful on its own.  It has been clarified that the “ordinary American purchaser” isn’t the average American, but rather is […]

By |April 18th, 2014|Blog|0 Comments

Flawed Logic

A couple more articles were published today regarding the beer legislation in Florida’s Senate. One of the articles is from Michigan. While there are people learning and writing about the ridiculous nature of the legislation in other markets, it still seems that some of those in the Senate still don’t truly understand the relevant context of the legislation.

According to one article, Senator Kelli Stargel, the sponsor of SB 1714, said the craft industry has thrived under the exception originally created to allow Busch Gardens to sell its beer directly to consumers. The thriving craft beer industry means more taxes collected by the State of Florida. More importantly, the exception was created to promote tourism, not to promote only Busch Gardens. The exception never specifies theme parks or theme parks developed by Anheuser-Busch. There is a reason for that. Tourism is good for Florida and its economy whether […]

By |April 15th, 2014|Blog|0 Comments

Come-To-Rest Exception

Florida likes to collect taxes. They want to ensure they get all of them. That’s not a Florida thing. Every government wants what they perceive to be theirs and every government wants to collect revenues.  Florida ranks in the top 10 in the United States in state excise tax rates on beer.  But a funny thing happened on the way to the bank: The Florida Senate’s Committee on Regulated Industries (chaired by Senator Kelli Stargel) introduced a bill that would remove one of the very requirements that purportedly exists to control and monitor that tax revenue. That requirement is the come-to-rest requirement (proper record keeping and thus proper tax collection is easier to verify with checks and balances).

On Tuesday, Senator Jack Latvala exposed Kelli Stargel’s lack of any true understanding of SB 1714 and, with time short in the committee meeting, he clearly felt […]

By |April 10th, 2014|Blog|3 Comments

Beer Bills Bring Dishonesty and Half-Truths

This blog was inspired by Mitch Rubin’s recent comments (proclaiming to support craft beer) that were reported in the Gainesville Sun. Mitch Rubin is the executive director of the Florida Beer Wholesalers Association (this is the group that represents ABInBev and has generally done their bidding). Rubin, who has cited “public health concerns” in the past when asked about blocking growler bills, again noted the need to protect the three tier system.  As we discussed previously, the three tier system isn’t all that it’s cracked up to be.  Plus, with groups like the Florida Beer Wholesalers Association doing what Anheuser Busch’s money tells them to do, does the three tier system really operate as it is meant to or the way that Mitch Rubin claims it needs to? The largest manufacturer is influencing the political process via one of those tiers that Rubin claims must be […]

By |April 3rd, 2014|Blog|2 Comments

Komlossy Law, P.A.’s Ross Appel was Featured in Two Recent Articles About Craft Beer Trademarks

Please click on the following links to read recent articles in which Ross was consulted regarding craft beer trademark issues.

As the Craft-Beer Industry Grows, So Does the Battle for Branding – Ross discussed, with David Minsky of the Broward/Palm Beach New Times, the need for trademark owners to use their mark in commerce and to police their rights. He also talked about the prevalence of cease-and-desist letters in the brewing industry and touched upon geographically descriptive trademarks.

Trademark dispute brewing over use of ‘Nitro’ – Ross talked with Eric Gorski of the Denver Post about Left Hand Brewing Company’s attempt to trademark the term “Nitro” as it applies to beer and what a federally registered trademark for NITRO would empower and obligate Left Hand to do.

By |March 20th, 2014|News|0 Comments

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

BeerPhoto

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