international

All the while you tend your vines, and the U.S. market for the fruits thereof, your precious brand names may be vulnerable to poaching, in the world’s most populous country. Lindsey Zahn points out the risks in a recent article in the Cornell International Law Journal Online. The article is entitled “No Wine-ing:  The Story of Wine Companies and Trademark in China” and it was published on November 4, 2013. It points out the risks and opportunities, and provides a good overview of how China treats wine trademarks, and how that differs from the U.S. system. Lindsey is a lawyer specializing in wine law and food law, and she is a frequent writer on such issues at winelawonreserve.com.

In the article, Lindsey explains:

China follows a “first-to-file” rule for trademark registration. This means that the first person to file a trademark application with the China Trademark Office (“CTMO”) is usually granted the registration rights. Prior use of a mark in commerce generally affords little or no protection to a trademark applicant in China. By contrast, the United States Patent and Trademark Office considers whether the applicant is the first to use or intends to use the mark in commerce.

If a business even contemplates...

On many labels, it can be difficult to draw the line. For example, it is tough to say whether this PimpnHo label (also by Weibel) goes too far. But then again, it is fairly clear that Champortini went quite a bit too far. It suggests Champagne but does not qualify to be labeled as Champagne. It suggests Port but does not qualify as Port. It sounds a lot like martini, but has none of the traditional martini ingredients. This puts the brand out in some rough waters, without the safe harbor of an approval before the crucial 2006 grandfather date set forth here. Any one of these issues might have been enough to sink this brand, but putting all these issues together, it would be a great surprise if the brand did not sink. It apparently lasted from April 27, 2007 (the date of the first approval) until a little after February 20, 2008 (the date of the third and final approval, as above). There is no trace of this brand’s survival at the Champortini website shown on the label.

We never thought we’d see a TTB controversy make it into a big ad in the national media — let alone a full page ad in Time Magazine. The yellow ad is on page 69 of the December 29, 2008 “Person of the Year” double issue and it covers the entire page. The French Office of Champagne is not at all pleased that some non-French wines qualify to be called Champagne, under US law. The ad says “Masquerading as Champagne … isn’t fair. … A legal loophole allows” some names to be misused. In 2006, after many years of negotiations between the US and the European Union, and agreement, TTB set forth the current US rule in TTB Industry Circular 2006-1:

the U.S. made a commitment to seek to change the legal status of [terms like Champagne] to restrict their use solely to wines originating in the applicable EU member state, with certain exceptions. Because the IRC specifically defines semi-generic names, this law must be changed in order to restrict the usage of the names to wines originating in the EU. Assuming the law is so changed, the Agreement contains an exception to this rule. We refer to this exception as the “grandfather” provision. Under the “grandfather” provision, any person or his or her successor...