The 9/11 Memorial wine is made by Lieb Cellars, LLC of Mattituck, New York. In a rare show of unity, it did not go over well with Anthony Bourdain, Dr. Vino, The Colbert Report, or The Christian Post.
Founding Fathers Beer
Part of the challenge and complexity is that label rules and trends change often. As recently as a few years ago, TTB would balk about pre-eminently famous people, such as these, on alcohol beverage labels. Founding Fathers Beer is bottled by CBC Latrobe in Latrobe, Pennsylvania. I tend to doubt that TTB would allow a President Obama label, even today (except maybe as a caricature), but George Bush, Bill Clinton and the prior Presidents may well be fair game now or soon.
When Does Wine = Spirits?
Plenty of regulators don’t know or don’t care about the difference between wine and spirits. Paul Jorgensen reviewed a recent and noteworthy trademark dispute showing this. Paul is a lawyer and he explains as below.
If you’re reaching for a beer, you’ll probably not accidentally grab that bottle of vodka, will you? Looking to pair that great salmon dish with a nice chardonnay usually won’t mean that you accidentally grab a six pack at the convenience store, right? Yes, even though you know that there’s a big difference between beer, wine and spirits (how they are made, sold and who drinks them, for example), you may be surprised to find out that not everyone does. The U.S. Patent & Trademark Office, for example, does not know the difference and continues to demonstrate this with new legal cases decided through its judicial branch, the Trademark Trial and Appeal Board (TTAB).
Who cares? You will if you are trying to register your beer, wine or spirits trademark. Unless you want to waste your money on an application that the PTO will reject, it is increasingly important to do a thorough trademark search first for any confusingly similar marks. That search should cover not only products the same or similar to your product (e.g., beer), but also all other alcohol products (e.g., wine and spirits too) regardless of how distant you think they are from your product. A recent trademark legal case drives this point home once again.
Remember, the PTO will refuse your trademark if it is likely to cause confusion with a confusingly similar mark that was registered or applied for before you applied for your mark. In the case Miguel Torres, S.A. v. Complejo Industrial RM, S.A. de C.V., Opposition No. 91188401 (May 17, 2011), an applicant for the mark GRAN SOL & Design for tequila was opposed by the owner of the registered mark GRAN VINÃ SOL for wines. The wine mark owner thought it would be damaged if the tequila mark was registered.
After finding that the marks were sufficiently similar to cause confusion if they were used on similar goods, the TTAB looked at the similarity of the goods. The TTAB bought the arguments that wine is similar to tequila because 1) they both travel in the same channels of trade (bars, restaurants, liquor stores, and online); 2) the purchasers are ordinary consumers; 3) one product may be substituted for another in drinks; 4) both are inexpensive and purchased on impulse; and 5) consumers either don’t see or don’t note the distinguishing name and address of the bottler, packer, or importer that appear on the label.
Commenting on the same case, The TTABlog observes: “Applicant submitted substantial evidence regarding the strict regulations governing alcoholic beverages in the United States. … The Board was not impressed.” The blog concludes that “The Board’s opinion, with numerous case citations, makes it clear why it is futile to argue that one alcoholic beverage is not related to another for Section 2(d) purposes.”
Never mind all the counter arguments that you can make about your discerning consumers, your distinguishable price points, and your different sales methods. Nope, this is only the most recent of TTAB and court cases that show that the law has a blurry view or is blind to important distinctions in the beverage industry. If you are thinking of a snappy new trademark, you stand warned – do your homework first, or better yet, have an experienced trademark attorney help you understand the risks.
COLAs on the Front Page
It’s not every day that you see COLA news on the front page of the newspaper, but it does happen from time to time. On Saturday, The Wall Street Journal featured COLA news on the front page. The story explained that no less than three companies have been trying to use Buffalo Bill as part of their branding — with two of them fighting it out in court. “The two entrepreneurs are fighting in court for the exclusive right to sell beer that trades on the musky aura of adventure surrounding Army-scout-turned-bison-hunter-turned-sharpshooting-showman William F. Cody.”
Eric Bischoff got his first COLA in March of 2011 (and the second one is here). He is a “former professional wrestling icon.”
While Bischoff already has the COLAs and applied for the trademark, it looks like Mike Darby has been selling beer under the Buffalo Bill name since before Bischoff. But “Mr. Darby failed to get federal approval of his label, as required by the law. (Mr. Darby says he thought the brewer and distributor had taken care of that.)” Darby owns a hotel in Cody, Wyoming “built by Buffalo Bill in 1902.” Darby “had to pull his beer from the market” while awaiting label approval.
The third company is affiliated with Bill Owens, but is not interested in fighting over the brand name. The brewery does not even seem to claim trademark on the brand name. The story says Owens has moved on from making beer and now runs a trade group for craft distillers (“It’s much more fun to be involved with people making whiskey, vodka and absinthe, he says.”) This may allow him to avoid a roundhouse kick, a six-shooter, and the swirling lawsuits.
Make Your Own Spirits
It’s clearly okay to go home, add some tomato juice to your vodka, and call it a bloody mary. And it’s almost certainly a bad idea to go home and fire up your small pot still, to make just a little spirits.
Somewhere in the middle, we now have “High Proof Micro-Batch Distilled Neutral Spirit Designed for Infusing.” It comes in a 375 ml. bottle, at 160 proof. It is made by The Northern Maine Distilling Company, of Houlton, Maine. The first related approval seems to go back about one year. It mentions that the vodka is designed for “infusions, extractions, mixology, and culinary applications.” The information-packed website explains:
160 Proof? Yikes! Don’t freak over the proof! The high concentration of alcohol makes Twenty 2 HPS perfect for infusing fruits, vegetables, meats, or dairy into vibrant liqueurs or flavored vodkas. Think of the 160 Proof like a very sharp knife in your kitchen. If you handle the knife with respect, it can perform amazing tasks. Same with the High Proof Spirit. It’s “sharp blade” creates infusions in hours, not weeks.
We think Northern’s COLA is interesting because we don’t know of too many other products designed for this manner of use. Also, the label underscores that TTB has no problem with strength claims on certain spirits products. This one has “High Proof” in big letters. Plenty of other labels have “Overproof.”
The site has many copyrighted recipes, such as “The Dude’s Caucasian,” inspired by Jeff Bridges and The Big Lebowski. Other eye-opening recipes include:
- Smoked Gouda Infused Vodka
- Caramelized Red Onion Infused Vodka
- Failed Recipes such as Bacon Infused Vodka (“One of the simple rules of this game, like distilling, is ‘junk in = junk out.'” “These are not soy based Bacos, but actual real bacon pieces packed with preservatives so that they don’t need to be refrigerated. Yum? Maybe on a salad, but not in an infusion.” “The flavor was of bacon, but not pleasant. It just wasn’t good.”)
I spent a fair amount of time trying to figure out why Twenty 2 as a brand name. I assumed it had something to do with the consumer’s age, such that, e.g., 7 Teen would not be a good choice. The answer was not evident on the company’s website but may be here:
originally, the name for the vodka was Jewell Vodka. But a company out West already had a copyright [trademark?] on that name, so it was back to the drawing board. The couple decided to get a bit more abstract. … “We talked about doing Aroostook Vodka or Katahdin Vodka, but those are so obvious. We figured, let’s pick a word that can be freely associated with anything,” said Galbiati. “Twenty 2 could be anything. It could be your address, your birthday, a sports jersey. It can mean anything to anyone. It sticks in your mind. Plus, the alliteration is nice. A Twenty 2 and tonic sounds good.”
The same Bangor Daily News article also explains, about the owners and startup:
Starting in early 2006, Galbiati and Jewell quit their jobs and began the process of starting up their business. While getting a license for a winery or brewery is, relatively speaking, not uncommon, getting the license for a distillery is a much more involved process. According to federal law, a person can brew up to 100 gallons of beer on their own, or 200 gallons if two adults are present in a household. A person also can make up to 5 gallons of wine. Any more than those amounts, and a license is needed. … A person cannot under any circumstances distill any amount of spirits without a license. It took Galbiati and Jewell about three years to get the OK to start making Twenty 2.
When I first saw the 2011 approval, I was concerned about blowing Twenty 2’s cover, before they were ready, in that the COLA is only a few days old. But they are clearly ready. Of course they have the 2010 COLA, along the same lines, and the 2011 COLA is a public record — but also, Northern has a big website with a lot of information about this idea (plus Twitter and Facebook). On this topic, I will take this opportunity to reconfirm that we have no real interest in publicizing anyone’s news, before they are ready. We make no claim to be journalists. We will be especially careful not to publicize any client news, before the client is good and ready. In the case of non-clients, we may ask, or be guided by generally available information (or the absence thereof). If, as here, the company website has a lot of the same information, it becomes difficult to ascertain what could be sensitive about the COLA.
Trampy Beer and Wine, and a Vigorous Defense Thereof
Some of the Clown Shoes beer labels, such as Tramp Stamp and Lubrication, are leading to lots of controversy. This got us to reading about the graphic designer for both. While we reserve judgment about the labels at issue, the blog post by the label designer for Clown Shoes is so good and vigorous that we wanted to cover it here. The designer of the label on the left is Stacey George. She is based in Massachusetts, and she talks about the issues in a July 6, 2011 post entitled “Sometimes, a Pipe is Just a Pipe.”
“Are Clown Shoes’ labels offensive?” Sure. Why not? Offensive is a subjective term. If you look at the labels and find yourself offended, there you go. Do you have the right to say so? Abso-friggin-lutely! Shout it from the highest mountain, or your Twitter account, or your brothers’ website, whatever your bullhorn is, use it, loud and proud. Here, let me loan you a sandwich board and a bell, you can be offended Town-Crier style, I got your back.
My labels for Clown Shoes—which were named Best Craft Beer Art of 2011 by PourCurator.com—are not illustrated with a sexist intent. For instance, a Tramp Stamp is a tattoo placed on the lower back of a woman to emphasize her sexuality. In Germany, they call it, Arschgeweih, meaning, “Ass Antlers.” Can you imagine if we had named a beer Ass Antlers!? We have nicknames for these tattoos because they have a purpose. The woman who has one is confident in her sexuality and she is enticing the viewer to appreciate her. A woman who is comfortable in her own skin and likes how she looks is a sexy woman. Sexy is not sexist. In fact, sexist is rarely sexy.
As a woman, and an artist, I have a hard time with [the] images being labeled chauvinistic. Chauvinism is an attitude of superiority over the opposite sex. I’m not designing women who are inferior, I’m designing women who celebrate who they are. So, who is bringing the inferiority? The viewer? The offended? It’s a complicated question.
Stacey George probably did not design the wine label on the right. But while we are appreciating Stacey’s work, and thinking about tramps, we wanted to include at least one more tramp-related label. Stamp du Tramp is bottled by Greg & Greg, Inc. of Sebastopol, California.
“Are Clown Shoes’ labels offensive?” Sure. Why not? Offensive is a subjective term. If you look at the labels and find yourself offended, there you go. Do you have the right to say so? Abso-friggin-lutely! Shout it from the highest mountain, or your Twitter account, or your brothers’ website, whatever your bullhorn is, use it, loud and proud. Here, let me loan you a sandwich board and a bell, you can be offended Town-Crier style, I got your back.
