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Friday, May 27, 2011

The Fair Treatment of Farmworkers Act: A Game Changer for Agricultural Employers

While many employers have focused their attention on the stalled Employee Free Choice Act over the past few years, another more targeted bill has quietly made its way through the California legislature.  Senate Bill 104, the “Fair Treatment of Farmworkers Act,” would effectively eliminate secret ballot elections for organizing farmworkers by creating a “card check” alternative.  Currently, farmworkers who want union representation go through a secret ballot process.  Under the alternative “card check” procedure, a labor representative need only submit a petition and cards signed by a majority of your farmworkers.  The labor representative can quietly gather the cards over a period up to one year, and they do not need to disclose to the farmworker the significance or meaning of the document they are signing.  After a brief investigation, you’ve got a union.  From that point on penalties for missing deadlines or committing unfair labor practices are steep: ranging from $5,000-$20,000 per occurrence.  The bill is currently awaiting Governor Brown’s signature.  Once it passes, its effects may be felt quickly, so take this opportunity to make sure your house is in order. 

For more information and assistance on such employment issues contact Greg Walsh at gwalsh@dpf-law.com.

Tuesday, May 24, 2011

Workplace Violence: Employers Given More Latitude by the Courts

It is tough to be an employer in California.  Until recently it was even tough for employers to fire employees who were violent or abusive at work if they had a disability that in anyway contributed to the violent behavior.  The California Court of Appeal recently recognized that employers have a duty to ensure a safe work place and that no employee has the right to threaten co-workers.  In Wills v. Superior Court of Orange County (2011) 194 Cal.App.4th 312, the Court held that an employer may properly distinguish between disability-caused misconduct and the disability itself when a disabled employee threatens or inflicts violence against coworkers.   Employers should now not feel that their hands are tied in terminating or disciplining a disabled employee who threatens or inflicts violence in the workplace.  Ultimately, an employee’s disability is no excuse for threats or violence.  Sometimes, even in California, common sense prevails.

Friday, May 20, 2011

USPTO Finds Wine and Tequila Related, Grants Opposition to Trademark Application for GRAN SOL

On May 17th, the Trademark Trial and Appeals Board (the "Board") of the U.S. Patent and Trademark Office (the "USPTO") granted an opposition filed by Miguel Torres, S.A. against a trademark application for GRAN SOL and Design for Tequila (as shown below) based on the prior registration of the trademark GRAN VIÑA SOL for wine owned by Torres.

Mark Image

In finding the marks to be confusingly similar, the Board held that even though the GRAN SOL and Design mark encompassed the stylized image of the sun, the GRAN VIÑA SOL mark was registered as a word mark and therefore could be used in association with any image making the GRAN SOL and Design mark less distinguishable.  Furthermore, even though the term "VIÑA" in GRAN VIÑA SOL may be understood to suggest wine, this merely distinguishes the goods under the marks and does not mean that consumers seeing the GRAN SOL and Design mark on Tequila would not think the Tequila was from the same producer of the wine who just decided not to use the "VIÑA" on the Tequila.

Turning to the goods, the Board also found wine and tequila to be related for purposes of determining consumer confusion.  The Board noted that in prior cases it had found wine and liquors to be related because the goods were sold through the same channels of trade to the same consumers.  Furthermore, the Board also noted that Torres demonstrated that it is not uncommon in the U.S. for the famous Tequila-based cocktail, the Margarita, to be made with wine, especially in establishments that are only licensed to sell beer and wine, but not liquor.  Torres also demonstrated that the product known as agave wine is also made from the same plant as Tequila.

Therefore, given the similarity of the marks and the relatedness of the goods, the Board found a likelihood of confusion and granted the opposition refusing registration of GRAN SOL and Design for Tequila.  While this case was not designated by the Board as precedential, it demonstrates that wineries must be cognizant of marks for Tequila when wishing to register their own marks for wine, and that when wineries own a senior trademark for their wine, they may prevent registration of a similar mark for Tequila.

Miguel Torres, S.A. was represented in this proceeding by Scott Gerien of Dickenson, Peatman & Fogarty.  A full copy of the case of Miguel Torres, S.A. v. Complejo Industrial RM, S.A. de C.V., Opp. No. 91188401 (TTAB 2011), may be found here:


For more information or assistance on trademark matters please contact Scott Gerien at sgerien@dpf-law.com

Sunday, May 15, 2011

TTB Shifts COLA Compliance Obligations to Applicants to Streamline Process

In a sign of TTB’s efforts to streamline and expedite the COLAs review process, the TTB announced on May 3, 2011 that it will no longer evaluate labels for purposes of ensuring that the labels conform to legibility and type size requirements (including characters per inch and contrasting background) contained in the code. TTB will continue to review all labels to ensure they contain all of the mandatory information and do not contain any prohibited information.  According to the TTB, this change was made to both “assist alcohol beverage industry members to move their products into the marketplace more quickly” and to allow TTB to use its currently limited resources more efficiently.  As many on-line COLAs applicants have no doubt experienced, TTB had previously spent a lot of time and resources returning applications for correction due to problems with image clarity or distortion, which resulted in many processing delays for COLAs applicants.  While TTB will no longer return applications for correction due to these issues,  industry members remain responsible for and must continue to ensure that the mandatory information on the actual labels is displayed in the correct type size, number of characters per inch, and on a contrasting background in accordance with the TTB labeling regulations.  This change in policy should come as good news to the many industry members that have seen an increase in the processing times for COLAs over the past year, which was due in large part to a reduction in the COLAs staff at TTB.  However, it also shifts the responsibility for compliance onto the COLA applicant meaning that the issuance of the COLA is no guarantee of compliance and COLAs may be more readily revoked if non-compliance is demonstrated to TTB by an objecting party.

For more information or assistance with COLAs or other licensing matters, please contact bhobel@dpf-law.com

Tuesday, May 10, 2011

Reimbursing Your Employees: Mileage Rates Remain Unchanged

The IRS has not changed the mileage reimbursement rate this year despite the rising cost of gasoline.  The current rate of .51 cents per mile went into effect January 28, 2011.  The last time gasoline prices were as high as they are today was Spring 2008.  At that time, in recognition of the high cost, the IRS announced an eight cent increase in the mileage reimbursement rate to .585 cents per mile for the period of July 1, 2008 – December 31, 2008.  Typically, the standard mileage rate for business is adjusted in the beginning of each calendar year based on an annual study of the fixed and variable costs of operating an automobile.  The IRS announced the 2008 increase on June 23, 2008.  Can we expect another mid-year adjustment to keep pace with the rising cost of gasoline? Stay tuned.

For more information on labor and employment issues contact Jennifer Phillips at jphillips@dpf-law.com

Thursday, May 5, 2011

West Sonoma Coast: Investing in Marketing over AVA Recognition

Vintners and growers from the far western coastal areas of the Sonoma Coast AVA have recently launched a marketing program to promote the “West Sonoma Coast” area.  The group has determined, at least for now, that the politics and bureaucracy surrounding the AVA formation process do not best serve the group’s goal of distinguishing the far west coastal properties and wines from the larger and Sonoma Coast AVA.  Although these marketing efforts may, in the future, strengthen the name, boundary and scientific evidence will be needed to support a new AVA petition.  Thus, this group appears to be testing the theory that a geographically oriented marketing program can build brand equity to an equal or greater degree than forming a new AVA and using that AVA name on the label of each qualifying bottle of wine.  Of course without any legal recognition of an AVA or a certification mark, one wonders how the group will be able to claim control of the West Sonoma Coast name.


For more information or assistance on the filing of applications for recognition of AVAs contact Carol Kingery Ritter at ckritter@dpf-law.com.