alcohol beverages generally

Remember the internet went wild a few weeks ago when it sounded like some goofball was saying it had nearly exclusive rights to use the term Kentucky? The Associated Press ran with it here: “The owners of Kentucky Mist distillery say University of Kentucky attorneys have sent them a letter asserting the school owns the rights to the word ‘Kentucky,’ at least on clothing.” This story just keeps getting better and better, because first it just sounded crazy, and now it has, perhaps, blown up in the instigator’s face. I am sure you can picture the new crop of UK freshmen lovingly mashing this moonshine in the dorm or maybe in a chemistry lab run amok.

Kentucky Mist Moonshine Inc. (KMMI) filed a declaratory judgment action against the University of Kentucky in federal district court yesterday. In its complaint, Kentucky Mist asks the court to declare that its KENTUCKY MIST MOONSHINE mark does not infringe or dilute UK’s registration for KENTUCKY. Kentucky Mist also asks the court to cancel UK’s registration.

By Frank Knizner, J.D., Dan Christopherson, Trademark Lawyer, and Robert C. Lehrman, Attorney

UK obtained a federal trademark registration for KENTUCKY for clothing and other goods in 1997, after alleging it had acquired distinctiveness in the mark through its substantially exclusive...

A federal judge in California tentatively dismissed a class action suit against MillerCoors on Wednesday. Plaintiffs in the suit—a class of Blue Moon purchasers—alleged that MillerCoors misled consumers into believing that Blue Moon is a “craft beer” by stating on the label that it is brewed by the “Blue Moon Brewing Co.” and by advertising it as “Artfully Crafted.” This ruling could become final as soon as today’s hearing.

Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California framed the issue narrowly: The question is whether MillerCoors is “specifically authorized” to list “Blue Moon Brewing Co.” as the manufacturer of Blue Moon on the beer’s labels. Judge Curiel answered that question in the affirmative, finding that Alcohol and Tobacco Tax and Trade Bureau (“TTB”) regulations “specifically permit a beer bottle and outer packaging to show, by label or otherwise, the name or trade name of the brewer.” Noting that California allows the “true name of a manufacturer” to include a “duly filed fictitious business name,” Judge Curiel held that MillerCoors’ use of “Blue Moon Brewing Co.”—a name properly registered as a fictitious business name in California—is specifically authorized by federal and state regulations. Accordingly, TTB’s approval of the Blue Moon label provides MillerCoors with a “safe harbor” from this type of litigation.

There are something like two dozen class action lawsuits floating around, against beer and spirits companies. Many are in the early stages. But information is starting to accumulate about the damages and fees at issue. For example, the Templeton Rye case is already settled, with about $750,000 in attorney fees going to the plaintiffs. The Maker’s Mark and Jim Beam cases are done, with nothing going to the plaintiffs. The Kirin beer case is wrapped up with $1 million in attorney fees going to the plaintiffs.

To get more visibility, about where all this may be headed, I looked beyond the alcohol beverage cases, to food labeling cases more generally. There are a lot of them. It turns out, there are so many, that they have provoked not only a blog, but also a study from The Brookings Institution, about a serious problem with a proliferation of suits about “natural,” “nutritious,” and “wholesome.” The Brookings study is of particular interest to me, not just due to the timely subject, but because I worked there briefly after college as a low level researcher. While researching for Stephen Hess, I sat with such (now) luminaries as Gary Mucciaroni and Robert Katzmann (when they were probably in their twenties).

Nicole Negowetti, a professor at Valparaiso...