legally interesting/controversial

Way back in December of 2008 we ran Part 1 and Part 2. We didn’t really expect to see too many more variations on this theme, or that it could go a whole lot further. But alas we may have underestimated the frat-boy contingent of the alcohol beverage industry. Not that we think it does or should offend any “adult beverage” consumer. Perhaps the liqueur is Chinese and pronounced Fu-Chen. Perhaps the ale is German. It’s quite possible that our mind is in the gutter, and these labels have nothing whatever to do with sex, but we wouldn’t put any money on it. Lest anyone be unduly offended, I have two kids and I am pretty sure it would take something more than this to set them off kilter. The Fokker Ale is made by Azalea Coast Brewing, in Wilmington, North Carolina. The Fuchen Liqueur is herbal liqueur, imported by BPNC of Temperance, Michigan. We appreciate the irony that this liquor company is situated in Temperance of all places, and a lot of other people apparently felt the same way, as the company has recently changed its name to The Temperance Distilling Company.

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...

We wrote about President Obama’s appearance, on a beer label, many weeks ago. So we were going to leave the above label alone. But the Hennessy label has received surprisingly little press attention, and a reader reminded us about it. The Hennessy label provides a vivid illustration of where the line is drawn, in the matter of Obama-alcohol-beverage-labeling, and how to do it right and wrong. Hennessy got it right, apparently, by avoiding any direct reference to Mr. Obama (by way of name or likeness). They went right up to the line but did not cross it. By contrast, as to the beer, Jill Jaracz wrote in to say:

Amid all the hoopla over the Presidential Inauguration, the TTB has officially nixed the idea of putting President Obama’s name and likeness on beverage labels by denying Ommegang Brewery’s application for a single-batch ale called Obamagang that they planned to release around Inauguration Day. TTB denied this label because they do not allow commercial use of someone’s name or likeness without that person’s permission. In order to comply with the law, the Cooperstown, NY-based Ommegang chose to rename their product Ale 2009, and the new approved keg label depicts that the beer was created in honor of the Inauguration. However, Ommegang’s website still flaunts the ruling...