trademarks-beverage

I am thinking this may be the best label ever, about lawyers. If I am not mistaken, that is a garden-variety lawyer, right below “Welcome, Trademark Attorneys!” and right above the briefcase. The lawyer just happens to be wearing a pink shirt, white suit, and closely resembles a werewolf.

It all started when Clown Shoes beer company got label approval for a Vampire Slayer beer in 2011. It is important to note that this beer claims to be made with “holy water” and “vampire killing stakes.”

In short order, the company that controls various VAMPIRE-related trademarks, pounced, and pushed Clown Shoes to cease and desist from using VAMPIRE terminology. Here is an example of a recent label approval, for a wine marketed by the company that controls the VAMPIRE mark. Clown Shoes explains:

Vampire Brands and TI Beverage Group, connected companies out of California that primarily market vampire themed wine, were suing us. They came to market six months after Vampire Slayer began distribution with a beer made in Belgium called Vampire Pale Ale, but they filed a trademark application prior to our distribution. Their position was that our use of the name Vampire Slayer was harming their ability to sell Vampire Pale...

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...

I do believe this Olde Bay Saison label raises at least a few legal issues. First of all, I sure hope the brewer had permission to use this famous branding. McCormick owns the Old Bay seasoning brand and probably would not have a sense of humor about any unauthorized uses. Even if the beer is loaded up with the same seasoning, and even if the reference tends to be flattering. I can not imagine that changing one letter (from Old to Olde) is likely to help any more. The total production for this ale with spices seems to have been tiny, so that may help somewhat more to avoid problems. A second legal issue is that, such a beer needs formula approval, before label approval and production. To get formula approval, it is usually necessary to provide a detailed ingredient list to TTB. It can be very difficult for anyone to get ingredient details (beyond what FDA typically requires on a food label’s ingredient list) about famous and protected products like Coca-Cola, Angostura Bitters, or Old Bay. TTB typically needs to check for artificial flavors, allergens, colors, and use-rate limitations, and this can be very difficult to do without a complete ingredient list of the sort that McCormick would be unlikely to provide to...