The question often comes up, even for lawyers who are well-versed in trademark law, what is the difference between labeling laws that govern alcohol labeling and trademark laws that have a direct impact on the content of alcohol labels. The answer is that there are major differences, but ones that are difficult to understand and easy to conflate.
The idea is this: that one body of law overlays on the other; they both apply in most situations and they sometimes interact. We’ll start with labeling laws. The federal government governs the content of wine labels through the TTB. The TTB has scores of regulations that affect what appears on wine labels. The policy behind most of these are consumer protection, the idea that claims on labels should be true, accurate, and convey information that is helpful to the consumer in terms of making buying decisions based upon health, consumption, and enjoyment, among others. Additionally, the TTB set a “floor” by which all states add additional requirements. Some states are more “regulation-happy” than others, but all have at least some discrete requirements in addition to the TTB.
Thus, the TTB in some instances requires certain information (if it’s missing, your label will not be approved) and in some instances requires the removal of certain information (a misleading description). For example, alcohol content is a requirement. If one were to leave alcohol content off of the label, the label would not be approved.
Some pieces of information are optional. For example, indications of geography or grape varietal are not requirement but they are allowed. If they are included, they must be accurate under certain specifications.
For a winery wishing to create a marketable label, I think of these laws as the “must do” category. Without proper TTB approval, a wine label simply cannot be used in the United States. I like to analogize this to crossing the street. The law requires that one use a cross walk (assume that is true), but looking both ways, by contrast, is simply good practice. Think of the TTB labeling laws as tantamount to using a cross walk, while considering trademark laws as tantamount to looking both ways before you cross.
No one really requires that you consider trademarks and do a trademark analysis before you begin selling wine with a particular label on it. For the most part, the federal government is not going to be out in the world policing the trademark content on wine labels, or at least not proactively. Instead, other private parties enforce trademarks; namely, the parties who own rights in the trademarks that others might be using.
The analysis can go very deep, but in essence, trademark rights originate when the trademark begins being used in commerce. So, while TTB approvals are often done months or even years before a label is brought out in the market, trademark rights often don’t come around until the label actually gets used. (This is complicated by the TTAB registration process and particularly intent-to-use applications, but for this discussion I am leaving these out.)
So, what I’m trying to stress here is that TTB labeling requirements and trademark analysis are both very important and should be considered when creating wine labels for use in commerce. However, if one were to rank them in terms of importance, or in terms of which have the higher likelihood of de-railing ones plans for global dominance, I would rank them TTB first, and trademark laws second.
Before I go, I also want to take a minute for a shameless plug for my friend Sam in NYC, who is promoting the home brew kit for the famous Bikini Beer from Evil Twin Brewing. I’ve had beers from Evil Twin before, and these are serious beers. Good job to Sam and the gang. That said, I won’t be brewing these at home, as my skills are better as a beer drinker than a beer cooker. Sorry Sam (and the gang).
(This posting is not to be construed as legal advice. If any of the information in this posting relates to legal issues that you are facing, you should contact an attorney.)
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