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Posts Tagged ‘Brewery Law’

Like Beer Law? Check Out These Blogs

September 29, 2010 Leave a comment

We drink, take notes and then we blog it. Law blogs are a bit different.

***This post was originally posted on BreweryLaw.com, a blog devoted to beer law! The blog is published by Reiser Legal, LLC, a Seattle, Washington law office. Reiser Legal’s Douglas Reiser is our regular legal blogger.***

I came across this wonderful blog by Tom Warks, today. Tom runs Fermentation: The Daily Wine Blog, a blog typically discussing the public relations within the wine world.

Tom regularly focuses on legal issues facing the wine industry and so he put together a list of some of the best alcoholic beverage law blogs out there. Included was a humble yours truly, amongst a wonderful crowd of legal minds.

Check out his list of legal blogs by following this link. There are an abundance of blogs for just about every taste in the alcoholic beverages law spectrum.

One blog of particular interest to myself, and likely most of you, is the Alcoholic Beverages Law Blog. This blog is written by the Portland office of well-respected law office, Stoel Rives LLP.

The blog is written by a collective of attorney out of the firms offices in Washington, Oregon and California. Seattle attorney, Susan Johnson, offers her own perspective from time to time, including this write up on the liquor Initiatives (1100 & 1105) currently on the ballot in Washington.

Thanks to Tom for including my blog in this list of elite commentators.

Beer Law & Legis: Port Brewing Takes Moylans Brewing to Court Over Trademark

September 15, 2010 1 comment

Lost Abbey's classic cross image is the subject of a trademark dispute in federal court

I was shocked to see this one yesterday; so shocked that I had to read it twice and pull the court records to believe it. Port Brewing, the business entity that sells Lost Abbey beers, has sued Moylan’s Brewing.

Port Brewing’s other business name, Lost Abbey utilizes a celtic cross symbol as its emblem. Well, Moylans Brewing (a historically irish brewer) decided to use a remarkably similar cross for their new Celts Golden Ale. You can see images of the conflicting marks by viewing this article by BeerNews.org. The two images are virtually identical.

Port’s Tomme Arthur provides, on his blog, that Port notified Moylans of concerns back in April of this year. However, after months of impasse, Port has decided to go forward with a Trademark infringement action in the US District Court for the Southern District of California. You can review the Complaint by following this link.

The gist of the suit can be found in some of the opening paragraphs:

9. Plaintiff has engaged in extensive marketing and promotion of their Celtic cross trademark and has enjoyed significant sales of their beer and merchandise, including sales of the Celtic cross beer tap handles.

10. Due to Plaintiff’s extensive use of its stylized Celtic cross image marks (collectively referred to herein as the “Port Brewing Marks”), Plaintiff has built up significant goodwill therein and its branded merchandise has been praised and recognized in the brewing industry and through various media.

11. As a result of such longstanding, substantial and continuous use, the Celtic cross- branded products have long been immediately recognized by consumers and the trade.

….

18. Upon information and belief, Defendant recently began using a stylized cross beer tap handle within its course of business that is strikingly similar to the Port Brewing Marks.

19. Upon information and belief, Defendant is currently using a stylized cross beer tap handle, at its brewery and at other participating restaurants, bars, taverns and breweries across the nation, including within this District, featuring marks confusingly similar to Plaintiff’s stylized Port Brewing Marks. Defendant is providing this infringing beer tap to distributors and such taps are being particularly confused with Port Brewing’s protected beer taps where both companies’ beers are being served.

Arthur is now taking a beating from craft beer enthusiasts – a beating that probably is not warranted. Unfortunately, beer is business. Businesses work hard to develop an image and when two closely competing businesses have confusing marks, someone needs to take a step back. Apparently, Port and Moylans will let the court decide who needs to take that step.

Tomme has been pretty beat up about the response from beer fans. He put together a well-written and thought out response to the negative animus. Here is a good snippet, but please read the whole thing by clicking on this link:

Please check our FAQ’s which we compiled to address this issue. At this time, we are waiting for a response from Moylan’s Brewing Company and still are open to a resolution that neither weakens nor devalues our Lost Abbey Trademark stylized Celtic Cross Tap Handle. ….  The bigger and healthier the Craft Brewing business gets, the harder it is to be unique and distinctive. Intellectual Property is something that all breweries (small and big) need to value. It’s one of the biggest assets we can own.

Lastly,filing paperwork with the Federal Courts does not mean we are obligated to sue Moylan’s Brewing LLC. I can tell you that we at Port Brewing and The Lost Abbey are not giddy with excitement about this filing. When I look out my office window, I know the 12 people who work at this brewery aren’t high fiving each other about their owners decision to do this. But they understand that Intellectual Property is a big part of this brewery and the beers we sell.

…at this time, it is a solely two small passionate craft breweries who happen to disagree looking to protect their intellectual property. Ultimately, a compromise that doesn’t involve the courts may be reached. And then we can all go back to focusing on doing the things we do best.

BrewDog Hits New High, Low: The End of History is Here.

July 22, 2010 1 comment

The End of History allows you to make out with a chipmunk. Nice Work, BrewDog

Ever wanted to drink your beer directly from a taxidermied animal? I know I have. There’s nothing better than popping the cap off a nice squirrel and going lip to lip with it (ok, thats gross).

Well, that’s all a possibility now, thanks to BrewDog. BrewDog is the Scottish brewer who brought us Tactical Nuclear Penguin (ABV 32%) and Sink the Bismarck (ABV 41%), two of the strongest beers in the world.

BrewDog has been the recipients of massive applause – and silent disdain – from beer drinkers of the world. Some applaud their relentless experimentation and combative spirit. Others are simply sick of  the battle between BrewDog and German brewer Schorschbraeu.

Regardless of what you think about the battle, the crazy high ABV booze, or their creative approach to labeling and marketing – you have to be intrigued with the latest installment: The End of History.

The End of History is 55% alcohol. 55%. I had to say it again. But what is even more incredibly ridiculous is that the beer is bottled and then implemented within a limited edition of taxidermied animals, ranging from squirrels, chipmunks, and perhaps other rodent-like mammals. The bottle is also considered to be the most expensive beer in the world. A 12oz sauce will hit your check book a cool $765.00 (but hey – collectors item right?).

Really? You might ask that question. But, I have come to expect this from BrewDog. They are constantly testing the boundaries of beer consumerism, marketing laws, and human decency. The new grog has to be celebrated if not for the fact that they decided to invest a lot of money into making something that is so far out of the box that it can only be premised on insane passion.

Check out the bottles over at Geekology. Also, be sure to check out the video that they released on Vimeo, capturing the creation process behind The End of History (well, at least their rendition).

We have had the great pleasure of trying out Tactical Nuclear Penguin and Sink the Bismarck. Both of them were, well, interesting. We had a much better reaction to Bismark, which was masked well with extremely concentrated hop extract.

If you get the chance to try any of these beers – you cannot pass it up. It won’t be long before the TTB and other regulators put a stop to classifying these types of brews as “beer.” It also appears that this will be the last time they do the high-ABV beer thing. Read below for more information.

From the BrewDog press release:

The beer is the last high abv beer we are going to brew, the end point of our research into how far the can push the boundaries of extreme brewing, the end of beer.


This blond Belgian ale is infused with nettles from the Scottish Highlands and Fresh juniper berries. Only 12 bottles have been made and each comes with its own certificate and is presented in a stuffed stoat or grey squirrel. The striking packaging was created by a very talented taxidermist and all the animals used were road kill. This release is a limited run of 11 bottles, 7 stoats and 4 grey squirrels. Each ones comes with its own certificate of authenticity.

Beer Law & Legis: TTB and USDA Work Together to Review “Organic” in Labels and Advertising

Portland's Roots Brewing is one of many brewers who slap "Organic" on the label

***This post was originally posted on BreweryLaw.com, the nation’s first, and maybe the only, blog devoted to beer law! The blog is published by Reiser Legal, LLC, a Seattle, Washington law office. Reiser Legal’s Douglas Reiser is our regular legal columnist.***

The Tax and Trade Bureau (TTB) and the US Department of Agriculture (USDA) released a new Memorandum of Understanding pertaining to the use of the term “Organic” on alcoholic beverage labels. Of course, this news is of utter importance to brewers, especially those in the NW who have focused on brewing organically.

We learned about this Memorandum on Davis Wright & Tremaine’s Hospitality Law Blog by attorney Kelly Luzania. According to Luzania, the TTB will continue to review all labels and advertising for alcoholic beverages, subject to a caveat. Any labels or advertising making claims that the product is “100% organic”, “organic” or “made with organic (ingredients)” must be reviewed with regard to USDA National Organic Program regulations.
From Kelly’s article:

COLAs for wine, beer and spirit labels that contain “organic” claims will now be approved by the TTB as “approved subject to compliance with the Organic Foods Production Act of 1990 and the National Organic Program regulations[.]” If they do not comply with USDA organic laws, the labels will be rejected and the TTB will let applicants know what changes need to be made to make the label compliant. An applicant may only appeal this rejection with the USDA’s Agricultural Marketing Service.

The Memorandum provides an interesting look at two of the alcoholic beverage industry’s regulatory bodies working together to reduce confusion and maintain consistency in COLA reviews.

A copy of the Memorandum is available on the TTB website and can be accessed by clicking here.

Beer Law & Legis: Black Raven Brewing Loses Trademark Battle with Wine Producer

Black Raven might not have a trademark, but they don't intend to ditch the name

***This post was originally posted on BreweryLaw.com, the nation’s first, and maybe the only, blog devoted to beer law! The blog is published by Reiser Legal, LLC, a Seattle, Washington law office. Reiser Legal’s Douglas Reiser is our regular legal columnist.***

This is somewhat of a travesty – but truly the way that trademark law works. Yesterday, June 21, 2010, Black Raven Brewing Co. lost a trademark battle over its “Black Raven Brewing Company” name and mark design. The story was first reported over at Seattle Beer News.

The challenge was brought by Franciscan Vineyards, who holds trademarks for wine and related products identified by the names “Ravenswood” “Ravens” and “Ragin’ Raven.” These names are associated with its Ravenswood Winery label that produces a large volume of wine in the United States.

There are a few things that really struck me about this case. The first is that this ruling comes at a time when Black Raven Brewing Co. is flying high, gaining every recognition in the brewing world, and putting a major dent in the Seattle craft brewing market. This is the same brewery who recently took home 3 medals at each the North American Beer Awards and the World Cup of Beer. They are on a roll.

But, after taking a look at the pleadings filed in the United States Patent and Trademark Office’s Trial and Appeal Board, I noticed that the challenge came up way back in January 2008.

Secondly, this was no easy challenge for Franciscan. They moved for summary judgment back in December 2008 and claimed that wine and beer were almost interchangeable, that the channels for sale were similar, and that the mark was confusingly similar. The court rejected this analysis, stating that Franciscan had failed to meet their burden of proof.

The Court proceeded to set the matter for trial. Several motions to strike were filed in 2009 that prompted a delay in the trial of the matter. But, the matter proceeded with briefing early this year; trial was held on the briefs and the decision issued this month.

Third, the Court refuses to sever the beer and wine industry. At times in its decision, its clear that the Court believes that they are virtually interchangeable. The Court provides:

Indeed, when the proper evidence has been made of record, the Board’s precedential authority specifically holds beer and wine are related products….

In sum, the factors relating to the goods, namely the similarities between wine and beer, the identity in trade channels and prospective purchasers, and the conditions of sale weigh in favor of a finding of likelihood of confusion.

This appears to be the first time that the trademark court has had to decide on a similar mark between beer and wine. They did cite the findings of a case between beer and tequila and one pertaining to malt liquor and tequila. But, the Court did not appear to draw any inferences from a similar beer and wine showdown.

This is an important distinction. This country has a glut of wine and beer producers. Many have extremely similar names (i.e. Stone Cellars v. Stone Brewing; Fat Cat Beer v. Red Cat Wine; Sea Dog, Laughing Dog, Lazy Dog, Spotted Dog and whole mess of other dog breweries and wineries). This could open the floodgates for more challenges in between these two industries.

Fourth, the Court used a strip down technique to tear away what it perceived to be generic terms. The Court stripped off “brewing company” and focused its attention on “black raven” v. “ravens”:

In the case of applicant’s mark, BLACK RAVEN clearly dominates the BREWING COMPANY portion. The generic words BREWING COMPANY are disclaimed, and, although we have compared the marks in their entireties, these words play a subordinate role in the mark.

The most important discussion of the word “raven” was in looking to the dictionary definition, which provided that the addition of the word “black” was essentially superfluous, not differentiating the two terms:

The marks share the word RAVEN (the plural form in opposer’s mark) and, thus, look and sound similar.

As for meaning, the term “raven” is defined, in pertinent part, as “a large, black, omnivorous and occasionally predatory bird; glossy black.” The New Lexicon Webster’s Dictionary of the English Language (1987).

Applicant’s promotional materials show that its logo depicts a black bird, as does opposer’s advertising materials. We find that RAVENS and BLACK RAVEN convey substantially similar, if not virtually identical meanings. Although the addition of BREWING COMPANY in applicant’s mark informs prospective consumers that the entity is a brewery, the evidence indicates, as discussed above, that beer and wine may emanate from the same entity.

So, its a crushing blow for Black Raven Brewing Co., but they are not out of options. They are entitled to appeal this decision in the future.

Initial accounts from Beux Bowman, the owner of the brewery, are that the brewery is not going to relinquish use of the name. Who can blame them? The young brewery has sunk an incredible amount of time, money and effort into building up a successful and well-known business icon.

It is very possible that Franciscan will approach the brewery about a licensing arrangement, which would permit them to use the mark, for a price. This is a typical goal of the trademark opposition procedure.

Whatever, Black Raven decides to do, we hope they continue building an incredibly successful brewing operation here in Washington state. Hopefully, the mere fact that they were a part of this dispute only provides additional marketing opportunities.

BreweryLaw.com: Modernize WA Shoots to End Washington Liquor Monopoly

Hi Ladies: If Modernize Washington gets their way, we'll see liquor on Seattle shelves soon

***This article was originally posted on BreweryLaw.com, a beer law blog published by Reiser Legal, our legal writers***

The recent initiative to privatize liquor sales in the State of Washington is picking up steam. Though this is not about beer, there are many in the beer industry who are probably interested in a major change in alcoholic beverage regulation in our fine state.

Initiative 1100 is the proposed legislation. The group behind this initiative is Modernize Washington, a Seattle based public interest group, providing not only the spirit behind the proposed law – but the statutory language itself.

A recent press release from Costco, showing support for the bill, puts the issue at the forefront of legislation challenges in Olympia. Of course companies like Costco, who has over 400 retail locations – all selling alcohol, stand to gain significantly from having access to liquor, for sale in their stores.

The proposed initiative would enable retail outlets like Costco to obtain licenses from the state of Washington, permitting it to sell liquor and permitting it to obtain liquor from almost any source – including the producers themselves.

Modernize Washington provides the following list of items that are at the heart of Initiative 1100. Take a gander for yourself:

  • Washington State’s Liquor Control Board [LCB] will no longer sell liquor.
  • LCB will end their current contracts with contract liquor stores.
  • Current operators in good standing of contract stores will receive licenses to continue in business as a private retailer, if they wish to continue operating.
  • LCB will no longer distribute spirits. The state distribution warehouse will be sold to generate money for the state.
  • A new distributor can be licensed and may buy from any licensed distillery and sell to licensed vendors just like beer and wine sellers.
  • Any store or distributor currently licensed to sell beer or wine, and in good standing, will be able to obtain a license to sell spirits, for an additional license fee.
  • Local jurisdictions throughout the State can determine how many outlets they will allow in their city via zoning regulations.
  • The state’s ‘mark-up’ on spirits is eliminated.
  • The existing tax on liquor will remain and it will be up to the Legislature to adjust the amount of tax.
  • The initiative mentions a 10% tax on purchases of spirits by restaurants. This is not a new tax or a tax increase. This is a technical update to current law, and merely requires private sellers to collect the existing tax which is now collected only by state stores.
  • Repeals the “Three-Tier System”, a set of Prohibition-era “blue laws” which grant monopoly privileges to middlemen, at the detriment of consumers.
  • Frees the LCB from the burden of enforcing outdated and unhelpful “blue laws”. The LCB will instead focus its mission on enforcement of licensing laws and education against under age drinking and general abuse of alcohol.
  • All license fees from the new licenses to sell spirits may only be used for enforcing liquor laws and educating the public against underage drinking and other abusive alcohol consumption.

One of the points that strikes me as impressive, is their attempt to undermine the historic “Three Tier” distribution system that has followed alcohol sales from the end of Prohibition. The system demands that alcohol funnel through three sparties – the producer, the distributor and the retailer.

Over the past decade or so, states have weakened their stance on preserving this archaic system by permitting exceptions for brewpubs and even small breweries who sell and distribute their own products.

Modernize Washington has a copy of Initiative 1100 on their website. Take a gander at Section 15 on Page 9-10 of the document. This is one of the sections that directly repeals the “Three-Tier” distribution system that craft brewers, winemakers and distillers have grown to despise. This Section allows distillers to sell their alcohol to consumers and distributors on their own – without a middle man.

I welcome any comments on your views of Initiative 1100. As the document is extensive, we will continue to discuss its impact – as we learn more behind the initiative’s intent and application.

Leave your comments below.

Beer Law & Legis: Collaboration Between Stone, Firestone and 21st Amendment Raises Eyebrows

BreweryLaw.com: New beer likely raised eyebrows at TTB

***This article was originally published at BreweryLaw.com, a beer law blog published by our legal writer, Reiser Legal LLC***

Well this might not be a topic for dispute, but Stone Brewing‘s latest triangular collaboration has quite a label. The beer – El Camino (Un) Real Black Ale.

The new beer is a collaboration between Stone Brewing, 21st Amendment and Firestone Walker, three of California’s finest brewers. From a quick look at the ingredients, this new collaboration seems to be a spiced fruit basket of ale.

BevLog, one of our favorites beer law websites, ran a story about the new beer after seeing the label submission run across the TTB. As you probably know, the TTB is responsible for approving the labels of beers sold in the US. The mission is to ensure transparency and safety for the beer consumer.

Check out the label above – and be floored by the contents of this new ale. Ingredients such as chia seed, peppercorns, fennel seed and mission figs are seldom seen on your beer label. In fact, they probably remind you more of your easter lamb than your afternoon ale.

The BevLog did some brief research on the contents: (from their site)

This beer has a rather uncommon and unlikely combination of ingredients. The peppercorns are no great surprise, but the alcohol beverages with chia seeds seem to be few and far between. Wiki reports that chia is an Aztec word for oily, and these seeds contain large amounts of oil, omega-3 fatty acids, and antioxidants. (Un)Real El Camino Black Ale is also brewed with fennel seed and mission figs. It is a collaboration among several brewers and is bottled by Stone Brewing Co. in Escondido, California.

It does not appear that this beer was held up in submission to the TTB. But it is likely that it demanded a bit of research over there. Its nice to see brewers continuing to push the envelope with new and exciting formulas.

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