Pages

Friday, January 28, 2011

Some Movement at WTO on Multilateral Register for Geographical Indications for Wines & Spirits

In what is being touted by the World Trade Organization (WTO) as the first attempt to produce a single draft text for a Multilateral Register for Geographical Indications for Wines and Spirits pursuant to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), representatives from WTO member countries met this month and put together a written draft of their conflicting positions on how one would notify a geographical indication for wines or spirits for registration on a multilateral register.

As some background, WTO members agreed during the Doha Development Round of WTO trade negotiations in 2001 to develop a multilateral register for geographical indications for wines and spirits so that terms such as Cognac, Napa Valley and Barolo could receive recognition or protection as place names at the international level.

However, exactly what such protection would be and how it would be accomplished was not set forth in any manner at the Doha Rounds and the negotiations that followed demonstrated that there were vast differences between WTO members as to what these should be.  On the one side was the "new world" led by the U.S., Australia, Canada and others which believed that the multilateral register should be nothing more than a list of wine and spirit geographical indications that would simply serve as a reference for WTO members with no legal effect.  On the other side was the "old world" led by the European Union, Switzerland, and later a network of developing countries seeking to tie their own IP interests to the geographical indication issue, which wanted mandatory protection of wine and spirit geographical indications in all WTO countries once placed on the multilateral register.

Between these two groups was Hong Kong, which set forth a "middle ground" proposal which attempted to address concerns raised by both sides: on the one side, the new world countries were concerned with conflicts of geographical indications with trademarks and terms which were generic in some countries, such as Champagne; on the other side, the old world countries sought to have some type of legal effect for the registration system so that geographical indications would have protection on par with other types of intellectual property.  Along with Hong Kong, a middle ground position has also been proposed by the International Trademark Association.  Both of these proposals have provisions for the protection of trademarks with prior rights and recognition of generic terms, while also allowing geographical indications with no conflicting issues to be recognized and protected with legal effect.

Since Doha, the process has been characterized by gridlock with very little movement on the principal issue of the multilateral register for wines and spirits, and expansion of the gridlock by adding other controversial topics to the discussion, such as expansion of such a register to goods other than wines and spirits.

The WTO has set a deadline of the end of the first quarter of 2011 for a draft written text covering six different points related to the Multilateral Register.  This development this month is movement on the first point.  It is an ambitious plan, but given the lack of movement over the past 10 years, certainly something to be optimistic about.

For more information on the current negotiations on the Multilateral Register for Geographical Indications for Wines and Spirits, follow the below link to the WTO web site:

http://www.wto.org/english/news_e/news11_e/trip_ss_13jan11_e.htm

For more information on assistance with protecting geographical indications in the U.S. and abroad, contact Scott Gerien at sgerien@dpf-law.com

Monday, January 24, 2011

Most Interesting New Wine Trademark Applications Filed in December 2010

Each month the editors of Lex Vini will select the most interesting wine trademark applications filed with the U.S. Patent and Trademark Office in the prior month.  In keeping with the broad meaning of "interesting," the marks may be selected because they have significant business interest, they demonstrate potential new themes in branding, or simply because they are quirky and different.

In December of 2010, there were two themes which appeared to have some popularity for trademarks in the wine sector: lust and candy (surprising for Christmas considering these are usually reserved for Valentine's Day). 

In the lust category, there were filings for NAUGHTY VIRGIN (App. Ser. No. 85/202,467 by Pazdar Beverage Company), LIVING IN ZIN (App. Ser. No. 85/194,073) and PEEP SHOW (App. Ser. No. 85/189,663 by Terravant Wine Company).

In the candy category, there were filings for the marks CHOCOLATE CUVEE (App. Ser. No. 85/203,314 by One Plus Two, Inc.), LOLLIPOP (App. Ser. No. 85/199,787 by Paterno Imports Ltd.) and ITALIAN CHOCOLATE (App. Ser. No. 85/200,611 by Rocland Estate Pty Ltd).

Also, in the "odd combination, but undoubtedly distinctive" category of wine trademarks were STEAK AND POTATOES (App. Ser. No. 85/189,627 by Terravant Wine Company) and FALCON AND HIPPO (App. Ser. No. 85/205,742 by Clare Ranch LLC).

In an apparent attempt to capitalize on the shift in Congressional leadership there was also RIGHT WING RED (App. Ser. No. 85/203,291 by One Plus Two, Inc.), in what might be an homage to Jersey's favorite mobster was TATTOO TONY'S from Atlantic Bottling, LLC in Ocean, NJ (App. Ser. No. 85/208,584), and in what might be marks "inspired by" Bay Area rock bands there was GRAPEFUL RED (App. Ser. No. 85/191,662 by R.H. Winery LLC) and RHUBY DOOBY (App. Ser. No. 85/206,440 by Guinan Family Winery & Vineyard, Inc.)(although this last one could also be a tribute to 70s cartoon icon Scooby Doo -- "rhuby dooby doo").

Never boring in the world of wine trademarks.

For assistance on your trademark matters contact Scott Gerien at sgerien@dpf-law.com

Friday, January 21, 2011

TTB Issues Final Rule on New Procedures for Recognizing AVAs

On January 20, 2011, TTB published the long awaited Final Rule on its controversial Notice No. 78, which proposed substantial changes to the AVA petitioning and formation process.  Notice No. 78 was published on November 20, 2007; the same day that the agency published Notice No. 77, proposing to establish the Calistoga AVA. 

Perhaps the two most controversial topics addressed in Notice No. 78 were proposed changes to the “grandfather” rules that address conflicts between brand names and AVA names and TTB’s stated concern over nested AVAs.  In the Final Rule, TTB backed off its proposal to create new “grandfather” rules stating that it was persuaded by opposing comments that stressed the potential for the proposed scheme to mislead consumers.  On the subject of nested AVAs, or AVAs within AVAs, TTB left the door open to the possibility that a petition to establish a new AVA entirely within or overlapping an existing AVA may result in the new AVA being excluded from the larger area.

Procedurally, the Final Rule greatly expands the petition evidence requirements and procedures for submitting and processing AVA petitions.  TTB emphasized that its new procedural rules do not impose new standards but "represent a codification of longstanding administrative authority and practice and address a need for greater transparency." 


For information on DP&F's services related to AVA formation and expansion contact Richard Mendelson at rmendelson@dpf-law.com

Wednesday, January 19, 2011

TTB Extends Deadline for Comments on Clarifying Use of Winemaking Terms

On December 29, 2010, TTB extended the comment period for the Advance Notice of Proposed Rulemaking on the Use of Various Winemaking Terms on Wine Labels and in Advertisements, aka Notice No. 109.  The comment period will end on March 4, 2011.  Notice No. 109 seeks wine industry input on TTB’s proposal to define terms used on wine labels and in wine advertising such as “Estate,” “Estates,” “Estate grown,” “Proprietor grown,” “Vintner grown,” “Vineyard,” “Orchard,” “Farm” and “Ranch.”  

All comments and documents associated with Notice No. 109 can be viewed at: http://www.regulations.gov/#!docketDetail;D=TTB-2010-0006.  

Comments can be posted online at:
 http://www.regulations.gov/#!submitComment;D=TTB-2010-0006-0001.

Tuesday, January 18, 2011

New California Law Requiring Use of "Sonoma County" on Wine with Sonoma County AVAs In Effect ... Kind Of

January 1, 2011, was the effective date of California Business & Professions Code Section 25246 which mandates that any wine label carrying the name of an AVA located entirely within Sonoma County must also bear the appellation "Sonoma County" on the label in a font no smaller than two millimeters on packages larger than 187 ml, and no smaller than one millimeter on packages of 187 ml or less.  However, even though the law is now officially on the books, it only applies to wine bottled on or after January 1, 2014.  This prospective date was selected in order to give wineries sufficient time to prepare their packaging for the transition.

While this law is based on similar laws for Napa Valley, Paso Robles and Lodi, it differs from those laws in that it does not require that "Sonoma County" be used in close conjunction with the name of the smaller Sonoma County AVA, nor that the label font for the "Sonoma County" appellation be comparable in size to the label font of the smaller AVA.

For the full text of the law, click on the following link:

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=41748816170+0+0+0&WAISaction=retrieve

Monday, January 17, 2011

Changes to Boundary of Santa Maria Valley AVA Effective on January 28, 2011

On December 29, 2010, the Alcohol and Tobacco Tax and Trade Bureau (TTB) approved the expansion of the Santa Maria Valley AVA in California's San Luis Obispo and Santa Barbara Counties by approximately 19,000 acres.  The expansion comes along the AVA's current Southern border in Santa Barbara County.  Proponents of the AVA indicated that the expansion was necessary to include vineyards near the Southwest portion of the AVA that were not contemplated when the AVA was first recognized in 1981.  The effective date of the new boundary is January 28, 2011.

To see the new boundaries of the Santa Maria Valley AVA, follow the below link to the Federal Register announcing TTB's recognition of the expansion:

http://www.federalregister.gov/articles/2010/12/29/2010-32873/expansion-of-the-santa-maria-valley-viticultural-area#p-62

For information on DP&F's services related to AVA formation and expansion contact Richard Mendelson at rmendelson@dpf-law.com

Thursday, January 13, 2011

New Estate and Gift Tax Will Impact Family-Owned Wineries

On December 17, 2010, President Obama signed into law a temporary, 2-year tax compromise hammered out in Congress during the so-called “lame duck” session.  The transfer tax highlights include:

Ø     Lifetime estate and gift tax exemption reunified and increased to $5 million per   individual ($10 million per married couple)
Ø     Estate tax rate reduced from 45% to 35%
Ø     Generation-skipping tax exemption increased to $5 million ($10 million/couple)
Ø     Reinstatement of full basis adjustment to fair market value at death
Ø     Optional estate tax retroactivity for 2010 decedents
Ø     Transfer of spouse’s unused exemption at death (“portability”)

            Portability is a new concept intended to simplify estate planning for married couples by allowing full use of $10 million worth of exemption without complex trust planning.  Some couples may benefit from amending their living trusts to eliminate complex “A-B” or “A-B-C” structures.  Unfortunately, portability may lull some couples into doing no estate planning at all.  Relying on portability may be inappropriate for spouses who are in second marriages, have different ultimate beneficiaries, wish to keep assets in trust for creditor protection or asset management, or who have done no planning and may still need living trusts, wills, powers of attorney, guardian nominations, etc.  In many cases, portability will make post-death administration more complex and expensive than would be the case otherwise because an estate tax return must be filed to preserve a deceased spouse’s unused exemption, even for non-taxable estates. 

For more information on these issues contact Dave Diamond in our Napa office at ddiamond@dpf-law.com, or Susan Teel in our Santa Rosa office at steel@dpf-law.com

Wednesday, January 12, 2011

Proposed California Budget Could Impact Williamson Act Subventions

This week, California Governor Jerry Brown unveiled his budget proposing to cut state spending by $12.5 billion dollars.  Some of these cuts will directly impact land use and agriculture.  Specifically, the Governor’s budget proposes the permanent suspension of Williamson Act subventions.  The Williamson Act allows agricultural landowners to commit their properties to agricultural uses in exchange for discounted county property taxes.  The state then reimburses counties for lost property tax revenues through annual subventions.  At this time, it is not clear whether this budget will be adopted as proposed or how severely this budget action will impact those wine-growing counties that have embraced the Act.

New California Law - Instructional Tasting License - Cal. Bus. & Prof. Code 23396.6

On January 1, 2011, California Business & Professions Code Section 23396.6 went into effect providing the ability to obtain an instructional tasting license for the tasting of beer, wine and distilled spirits at off-premise retail licensed locations.  The license permits retailers to allow licensed beer, wine or distilled spirits producers or importers (but not licensees only owning type 17, 20 or 17/20 licenses) to provide free instructional tastings of their products in limited amounts at the retailer's store in specially-designated areas with some physical separation (e.g., wall, rope, chain, fence) from the remainder of the store.  For the full text of the new law see:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&group=23001-24000&file=23355-23405.3

For assistance in obtaining an Instructional Tasting License please contact Mike Mann at mmann@dpf-law.com