I am pleased to share a guest post, from Paul Jorgensen. Paul is an attorney in Washington, D.C.

For readers thinking of registering a surname as a trademark for their beverage, please consider a recent case by the judicial branch of the U.S. Patent and Trademark Office (PTO), the Trademark Trial and Appeal Board (TTAB). According to In re Hall Wines, Serial No. 78926151 (February 10, 2009), anything that looks like a surname in your mark must be, above all, unique. The PTO usually refuses marks that are surnames, reasoning that if the PTO grants registration to that name, others may be unfairly stopped from using their name on their business, products or services. Since distillers and wineries often think of branding their products with family names, famous names, or names of well-known craftsmen, the resulting marks are frequently refused. So distillers and wineries should have a clear understanding of how the PTO will review their proposed mark. If the PTO thinks your application contains a surname, they will put the proposed mark through four tests, often referred to as Benthin factors after a case with the same name (In re Benthin Management GmbH, 37 USPQ2d 1332, 1334 (TTAB 1995)):

1. How rare is the surname? The PTO will research this or...

Plenty of labels call attention to feminine endowments, but we haven’t seen too many labels that point so directly to male equipment. Well Hung wine is produced and bottled by Virginia Wineworks of Charlottesville, Virginia. The back label brags that “Our wines stand up to any occasion!” Any other good examples out there?

It is likely that all beer, wine and spirits labels will change dramatically in the near future. TTB has been working on new rules since CSPI and other groups submitted a petition in 2003. The new rules would require a “Serving Facts” panel on every container. This panel would include a lot more information, such as the typical serving size, number of servings per container, calories, carbohydrates, protein and fat. Because this is a big, controversial change, TTB has received more than 18,000 public comments during the past few years. There are far too many comments for most people to review, and so we will highlight and summarize the most noteworthy comments here. The most recent proposal and comments are here. This is comment 10 in a series; to see others, click on the “serving facts” tag below. The Brewers Association represents about 1,400 small brewers across the US. The Association’s 29-page comment said:

1. Compliance will be expensive and lead to fewer products in the market.
2. A 12 ounce serving size makes sense for normal beer, but modern brewing “allows for malt beverages to be fermented over 27% ABV” and for those over 20%, a reasonable serving size would be just 2 ounces.
3. 100% of small breweries will be affected by the proposed rule and 38% said...

Here (above) is the COLA for Pernod Absinthe, at long last. It was extremely difficult to find, in TTB records, and a lot of absinthe enthusiasts have been looking for the COLA for upwards of a year. For example, Alan Moss’ Real Absinthe Blog does a great job tracking all the US-approved absinthes, but he too was not finding the approval. As of today his blog says “Pernod Aux Extraits de l’Absinthe: announced … for July 2008 launch. … Where is the label approval?” We think it’s fairly interesting that the Pernod label, for some reason, lists CERTIFIED COLORS AND FD&C YELLOW #5 in big text on the front label. But the comparable La Fee absinthe shows “caramel color & certified colors FD&C Blue #1 & FD&C Yellow #5” in much smaller text, on the back label.

China is of course coming on strong in many fields, such as athletics and car production. And now it looks like China’s alcohol beverages, too, are modernizing. China Silk (as above) has a somewhat more modern label, compared to most Chinese wines we have seen over the years. Imperial Jade is also made in China and is a lychee flavored vodka. The front label claims it’s filtered eight times through jade and charcoal. The back label helpfully explains that jade “symbolizes strength, nobility, perfection and immortality.” It must be powerful stuff because it also embodies “wisdom, compassion, modesty, justice and courage.”