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Tuesday, August 30, 2011

European Court of Justice Recognizes Superiority of Cognac Geographical Indication

On July 14, 2011, Bastille Day, the European Court of Justice (ECJ) recognized the superiority of the geographical indication (GI) "COGNAC" for spirits in Finland over a trademark application encompassing the term "KONJAKKI" for a generic reference to brandy not meeting the standard for the use of "COGNAC" as set forth by the Bureau National Interprofessional du Cognac (BNIC).

The case was largely one of technical interpretation in determining whether a Finnish trademark registration filed in 2001 and registered in 2003 for a mark encompassing the term "KONJAKKI," the purported Finnish generic term for "brandy," and the Finnish translation of "COGNAC," could remain registered despite the fact that "COGNAC" is recognized by the European Union as a geographical indication in the revised EU Spirits Law of 2008 (EU Regulation No. 110/2008).

Even though the Finnish trademark at issue today was registered in 2003 and the new EU spirits law recognizing COGNAC did not come in effect until 2008, the ECJ found that the Finnish trademark application for the mark encompassing the term "KONJAKKI"" was bound by the requirements of Article 23(2) of TRIPs (the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights), and, because it was applied for after the 1996 grandfather date of TRIPS, the ECJ found that the use and application to register the mark encompassing the term "KONJAKKI," was invalid based on BNIC's rights to control and certify use of the term COGNAC.

For more information on matters related to geographical indications, contact Scott Gerien at sgerien@dpf-law.com.





Monday, August 15, 2011

California ABC Announces On-Sale Liquor Licenses for Napa County

The California Department of Alcoholic Beverage Control (ABC) announced authorization for the issuance of five (5) original on-sale general liquor licenses for bona fide public eating places in Napa County, as authorized in Section 23826.10 of the Business & Professions Code. These licenses are to be issued only to premises having a seating capacity for 50 or more diners. The fee for a new on-sale general license is $13,800

The filing period for the licenses available is from September 12, 2011 through September 23, 2011.  If ABC receives more applications than there are licenses available, a public drawing will be held. To participate in such a drawing, an applicant must have been a resident of California for at least 90 days.

For more information or assistance on applying for such license contact Mike Mann at mmann@dpf-law.com

Thursday, August 4, 2011

"SKINNY" Brands are Where It's At

In our monthly review of trademark applications at the U.S. Patent and Trademark Office (USPTO), it appears the latest trend in alcohol beverage products is "SKINNY" brands.  In the month of May 2011, there were six different trademark applications filed for marks for alcohol beverage products encompassing the term "SKINNY."  These included the marks SKINNILICIOUS (alcohol cocktail mixes), SKINNY APPLE (hard cider), SKINNY CAIPIRINHA (prepared alcoholic cocktails), SKINNY MOJITO (alcoholic beverages except beer), SKINNY MOMMY (wine) and SKINNY PIRATE (alcoholic cocktail mixes), not to mention the related application for SLIM COCKTAIL (alcoholic mixed beverages except beers).

This latest trend is no doubt inspired by the acquisition of the SKINNYGIRL brand of prepared margarita cocktails by Beam Global from New York Housewife Bethany Frankel for $120 million.

The term "SKINNY" was not unique to the SKINNYGIRL brand when Beam decided to acquire it as there existed established brands with registered marks such as THE SKINNY BITCH for wine and SKINNY TINIS for wine, spirits and liqueurs.  Thus, neither Frankel nor Beam could claim exclusivity to the term "SKINNY" in association with alcohol beverage products when the SKINNYGIRL mark was adopted.

Industry publications have indicated that the value of the deal to Beam Global was "to access the built-in demographic and platform that Frankel brings to the table" through her reality TV presence and online social networking outlets.  This is a good thing for Beam because the brand itself appears susceptible to knock off without any remedy as evidenced by the prevalent use of "SKINNY" in association with alcohol beverage products and the recent flurry of trademark applications.

This is a good example of how the value of a brand consists of more than just the name, but also how brands without an exclusive right to the distinctive portion of the brand identity are susceptible to legal attempts to free ride on the brand success through the copying of the non-exclusive term which consumers may associate with the brand, i.e., "SKINNY.".

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