Five Important Trademark Lessons the Beverages Trade Learned in 2014

The folks at the U.S. Patent & Trademark Office (“PTO”) received nearly half a million trademark applications last year. These applications included thousands of new filings by breweries, vineyards, wineries, and distilleries. Here are five important lessons we learned from last year’s decisions by various trademark tribunals about protecting (and registering) your mark in the beer, wine or spirits industries. Continue Reading

Despite What You May Think, “IPA” Really Could Have Been a Trademark for Beer

Can one brewery sue another to stop them from using a stylized version of “IPA,” a familiar acronym for the popular style of beer known as India Pale Ale?  As you may have heard, the Lagunitas Brewing Co. just tried  . . . and it didn’t go so well.  But things could have worked out very differently if Lagunitas had raised its claims back in 1995, a time when Lagunitas says it was the only one using “IPA” to market an India Pale Ale.

On Monday, The Lagunitas Brewing Co. filed suit against fellow California craft brewery Sierra Nevada Brewing Co. for trademark infringement in an attempt to prevent Sierra Nevada from rolling out a new label for Sierra Nevada’s “Hop Hunter IPA”.  Lagunitas claimed Sierra Nevada’s label depicted “IPA” in a style that was too similar to the way “IPA” appears on the label of Lagunitas’ flagship “Lagunitas IPA”.

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Sierra Nevada’s design, Lagunitas argued, “uses all capital, large, bold, black ‘IPA’ lettering in a font selection that is remarkably similar to the Lagunitas design” and was likely to create confusion among consumers as to the origin of Sierra Nevada’s product.

By Wednesday, Lagunitas had dropped the case, citing the overwhelming public uproar over its claims:  “Today was in the hands of the ultimate court; The Court of Public Opinion and in it we got an answer to our Question; Our flagship IPA’s registered federal trademark has limits

Why Lagunitas Faced an Uphill Battle Continue Reading

U.S. Trademark Filing Fees to be Reduced in 2015

Great news! The U.S. Patent and Trademark Office (USPTO) has announced that trademark application filing fees will be reduced by $50 per class effective January 17, 2015. The USPTO fee for standard electronic filings will be $275. The USPTO fee for electronic filings that use previously-accepted goods and services wording will be $225.

Application filing dates are important, so we do NOT recommend delaying any new applications until January 17 in order to take advantage of the reduced fees. It’s always best to file ASAP after a mark is cleared through searching, especially if the mark is not yet in use.

Further, the USPTO fee for renewing a registration will be reduced from $400 to $300 per class. If your renewal deadline falls after January 15, you may as well wait until then to file for renewal and save a few bucks.

Oregon Liquor Control Commission Given Job of Regulating Recreational Marijuana

Following in the steps of Washington and Colorado, Oregon voters passed Ballot Measure 91 (PDF) on November 4, opening the door to legalized recreational marijuana in the state. Beginning July 1, 2015, the Control, Regulation and Taxation of Marijuana and Industrial Hemp Act allows Oregonians 21 years and older to possess up to eight ounces of dried marijuana and grow up to four plants per household. Each adult can possess up to one ounce of dried marijuana in public, but marijuana may not be consumed in public or while driving. Possession of infused products (such as drinks and lotions) will also be allowed.  The Oregonian’s FAQ addressing the measure is a good place to start to get the basics.

The Oregon Liquor Control Commission (“OLCC”) is responsible for drafting and adopting rules to regulate the use, licensing, and sales of recreational marijuana. Four types of marijuana businesses will be allowed under the Act:  (1) marijuana producers licensed to grow for wholesale; (2) marijuana processors licensed to produce extracts and products; (3) marijuana wholesalers licensed to purchase weed and weed products to sell to retailers and other non-consumers; and (4) marijuana retailers licensed to sell weed and related items at retail to consumers. The OLCC will begin accepting applications for these four business types on January 4, 2016.

The OLCC issued a statement (PDF) in response to the passage of Ballot Measure 91. OLCC chairman Rob Patridge plans to meet with members of the public across the state to draft rules that reflect “Oregon’s way” to regulate marijuana. The process will involve input from government, schools, law enforcement, growers, and medical marijuana business, and will result in rules that take account of some of the lessons Washington and Colorado have learned since legalization occurred in those jurisdiction. The public can send comments to marijuana@oregon.gov and can obtain basic information on the new law by calling (503) 872-6366.

Stoel Rives will continue to monitor the development of the new regulatory regime and will post periodic updates on this blog.  Please check in regularly and contact us if you have any questions.

For a perspective on what legalization means for Oregon employers, read What Does Alaska’s and Oregon’s Legalization of Marijuana Change for Employers?  Answer:  Probably Not Much. on our sister blog, World of Employment.

Alcoholic Beverages Law Blog Launches New Responsive Design and Enhanced Reader Features

Dear Alcoholic Beverages Law Blog readers. We first launched this blog in 2010 to help us keep you informed about major alcoholic beverages law news and – in particular – how these developments could impact your business. While our commitment to keep you informed hasn’t changed, technology certainly has. More than four years ago, we were still operating in a desktop- and RSS-dominated world. Today, more and more of you are reading our posts on tablets and smartphones. As readers ourselves, we understand your need for news on-the-go and at your convenience.

So we’re very excited to announce to you today a completely new – and improved – blog design, along with new feature sets we think will enhance your content experience.

  • First, Alcoholic Beverages Law Blog now uses a responsive design format. So no matter where – or on what device – you visit us, you can be assured of a consistent, clean and crisp reader experience.
  • Second, we’ve added new social sharing features to our posts. With easy-to-read social icons, sharing Alcoholic Beverages Law Blog posts with your social networks is now a snap.
  • Third, we’ve improved our content subscription options. We’ve expanded the number of RSS subscription feeds, optimized the look and feel of our email subscription service, and added links to our Twitter feed as an alternative content consumption option.

We hope you enjoy the new design and accompanying readership experience enhancements. Thanks again for visiting and keeping us on your list of must-read alcoholic beverages news sites!

Rebuilding: Dealing with or Without Earthquake Insurance

The following post was written by my colleagues Tom Woods, Parissa Ebrahimzadeh & Bao Vu

As part of the Northern California business community and as an advisor to business, we support the Napa and the surrounding Bay Area in getting homes and businesses back on their feet following the August 24, 2014 Napa Valley earthquake.

The earthquake that rocked Napa Valley and nearby regions left an estimated $1 billion in damages, according to a county news release. The McClatchy News Service recently observed the quake “upended more than wine barrels and mobile homes. It also was an unsettling reminder of how few Californians – homeowners and businesses alike – carry earthquake insurance.”

Sure, insurance agents will discuss earthquake insurance policies with business owners, but Napa Valley region had not experienced a quake of such magnitude since 1989. Thus, this rare but catastrophic risk was one for which the cost-benefit analysis dictated to many Californians that they should forgo the expensive form of insurance. Statistically, the shocking drop in homeowner earthquake insurance policies purchased over the last decade was dwarfed by the 29% drop in the number of California businesses that purchased policies over the same period. Reports are that only 10% of California businesses and residents carrying property insurance also carry earthquake insurance.

Where the wine and agriculture industry suffered $48 million worth of damage, and with over 120 businesses affected, the questions running through so many confused and disrupted lives include: “What do I do now? Did I need earthquake insurance, specifically? Am I covered? How do I perfect a claim if I am covered and where can I go for help?”

Continue Reading

TTB Will Consider Penalty Waivers for Late Payment of Excise Taxes By Businesses Impacted by Northern California Earthquake

The Alcohol and Tobacco Tax and Trade Bureau (TTB) issued a notice yesterday stating that it will consider waiving – on a case-by-case basis – late filing, payment or deposit penalties for taxpayers unable to file payment of Federal excise taxes due to the August 24, 2014, Northern California earthquake. Text of the statement follows below.

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Compliance Checklist for Mandatory Quality Assurance Testing of Marijuana Products

To considerable fanfare – and the occasional stumble – the legal recreational marijuana industry opened for business in Washington state last week. So far, the Washington State Liquor Control Board (WSLCB) has issued the state’s first 24 marijuana retailer licenses, representing the first of 334 licenses allotted by the WSLCB for retail sales who have successfully completed the Initiative 502 licensing process. Now that sales of legal marijuana and marijuana-infused products have commenced in the state, many are asking about the quality and safety of these products.

Like other food and beverage items we ingest, marijuana products can contain mites, molds, and even foodborne pathogens such as E. coli. In order to stave off potential health and safety risks, WSLCB mandated that all marijuana products undergo rigorous quality assurance testing by certified labs. In fact, as Dan Flynn at Food Safety News reports, “Washington state is off to a safer start than Colorado.” According to Flynn:

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Doors Open for Business for Licensed Marijuana Retailers in Washington State

Hundreds of eager customers lined up outside of Washington’s newly licensed marijuana retailers on Tuesday to make history by participating in the first legal sales of recreational marijuana in the state. Earlier this week, the Washington State Liquor Control Board (WSLCB) issued the state’s first 24 marijuana retailer licenses. These businesses represent the first of 334 licenses allotted by the WSLCB for retail sales who have successfully completed the licensing process.

Early in the morning on Monday, July 7, 2014, the 24 applicants were notified via email that they were approved for a retail license. According to the recently finalized rules around state-sanctioned sales of marijuana, once approved for a license, producers and/or processors are able to file a required manifest for transporting to the licensed retail locations. Following a 24 hour quarantine period, they may begin transporting products to retail stores. After this 24 hour period, licensed marijuana retailers are then permitted to sell their inventory and enter it in to the established traceability system.

Despite the issuance of 24 new retailer licenses, only a handful of licensed marijuana retailers opened their doors for business on Tuesday. Retailers explained that this was largely due to a lack of supply. Marijuana growers in the state only received their licenses in March, which was not enough time to produce a substantial crop. Because of this supply issue, some retailers have decided to ration supplies over the next several weeks, allowing customers to buy only a fraction of what is permissible under the law.

Locations receiving licenses were selected by taking into account population, geographic dispersion and the individual applicant’s readiness to be licensed. A complete listing, including contact information of the new retail licensees, can be found online within the Public Records section of the WSLCB website.

Buying and Selling Liquor Licenses in Utah

Utah’s Transfer of Retail License Act (the “Act”), which becomes effective today, permits the transfer and sale of retail liquor licenses by current retail license holders. Although enacted in 2011, the legislature previously delayed implementing the Act in response to concerns that the creation of a private market for retail licenses would drive up prices and create additional barriers to entry for small businesses. The legislature opted against further extending the effective date of the Act during the last session. Consequently, current holders of retail licenses, such as restaurant and club licenses, are now able to sell and transfer these licenses subject to the provisions of the Act.

To transfer a retail license, a proposed buyer first has to file a notice of intended transfer with the Department of Alcoholic Beverage Control (the “DABC”) at least 10 days before filing a transfer application. The buyer must include a statement regarding the amount to be paid to the license holder for the transfer. If the transfer includes payment to the license holder, steps are required to protect any creditors of the license holder. The license holder must provide the buyer with a list of creditors with claims against the license holder. The license holder and buyer also have to establish an escrow [with an approved institution] into which any payment for the license will be deposited. The Act sets forth the priority for disbursement of payment, with claims for back taxes and wages and other secured and statutory claims have priority over the license holder. Escrow is not required for transfers that do not include payment for the license.

Before the Commission can approve the transfer, the DABC is required to conduct an investigation and may hold public hearings to gather information and make recommendations to the Commission as to whether the transfer should be approved. The Commission may not, however, approve a transfer of a retail license between two different counties or to an entity that is not eligible to hold that type of retail license.

The Act also applies to certain changes in ownership of a business entity that currently holds a retail license. Each of the following must comply with the Act:

  • a change in ownership of 51% or more of the shares of stock of a corporation;
  • admission of a new general partner into a partnership or when 51% or more of the capital or profits of a limited partnership is acquired by or transferred to others as general or limited partners; and
  • a change in ownership of 51% or more of the interests in a limited liability company.

Importantly, if a license holder fails to comply with the provisions of the Act within 30 days following one of the changes noted above, the retail license is automatically forfeited. Additionally, the Commission may void any transfers of retail licenses that violate the provisions of the Act and require the forfeiture of the retail license.

The DABC anticipates that the process to review and approve transfer applications will take at least 45 to 60 days. Application forms and materials should be available on the DABC website beginning today. Please contact me or Catherine Parrish Lake with questions about the Act or for assistance with the license transfer process.

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