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Friday, March 29, 2013

TTB Issues Ruling re COLAs for Beer


Breweries wishing to sell beer within their home states got a break from TTB as part of the federal government's ongoing efforts to streamline the alcohol beverage label approval process.  In a ruling issued on March 27, 2013 the TTB announced that there is no need for them to apply for either a certificate of label approval (“COLA”) or a certificate of exemption for domestically bottled beer sold solely in the state in which it is bottled.  The TTB also reiterated that all beer -- whether sold in interstate commerce or solely in state -- must abide by federal labeling requirements (including the health warning statement).

This rule only applies to malt beverages.  Wineries must still apply for a COLA or a certificate of exemption even if their wine is sold solely instate.  

The TTB’s ruling is available at:  http://ttb.gov/rulings/2013-1.pdf

Contact John Trinidad at DP&F with any questions or assistance on COLA matters at jtrinidad@dpf-law.com 

Thursday, March 28, 2013

WIPO Symposium on Geographical Indications Wraps Up in Bangkok

The biennial World Intellectual Property Organization (WIPO) Worldwide Symposium on Geographical Indications wrapped up today in Bangkok, Thailand. The 2013 Symposium was hosted by the Thailand Department of Intellectual Property.

The two-day Symposium featured eight educational sessions with over thirty speakers from across the world discussing issues related to the protection and enforcement of geographical indications, including appellations of origin for wine, and the mechanisms and procedures for such protection and enforcement in numerous countries. Presentations included the experiences of various regions known for the production of different goods including Ceylon tea from Sri Lanka, Parmigiano Reggiano cheese from Italy, Scotch Whisky from Scotland, Malaysian pepper, and Napa Valley wine from the U.S.

The Symposium also featured an exhibition of GI products from Thailand and other countries which featured various fruits, coffee, cheese, wine and handicrafts, including a live demonstration of the historic method of production of the silk threads used to make Thai silk.

The Symposium was attended by over 400 participants and was opened by Her Royal Highness Princess Sirindhorn of Thailand. The Symposium serves as an invaluable forum for the exchange of information and ideas related to the protection of appellations worldwide and the promotion of agricultural products, such as wine.

Scott Gerien of Dickenson, Peatman & Fogarty was an invited speaker and presented on the issue of use of geographical indications alongside trademarks and the Napa Valley story in developing a recognized brand in an appellation of origin.

More information on the Symposium can be found at the WIPO web site:

http://www.wipo.int/meetings/en/2013/wipo_geo_bkk_13/index.html

Friday, March 22, 2013

TROs and Preliminary Injunctions: The Wine Advocate, Inc. v. Antonio Galloni

Much has been written about the lawsuit filed by Robert Parker's company, The Wine Advocate, Inc. ("TWA"), against Antonio Galloni, specifically on the allegations of fraud, defamation and breach of contract. But buried on page 21 of this 26 page complaint may be one of the most intriguing aspects of this action: a request by TWA for a temporary restraining order ("TRO") and preliminary injunction to enjoin Galloni from "publishing any and all articles and/or tasting notes relating to the Sonoma, Brunello, Barolo and Burgundy wines, and enjoining Defendants' use of Plaintiff's confidential subscriber information …." Should the Court grant TWA a preliminary injunction, then any articles or tasting notes from Galloni's visits to wineries in Sonoma and elsewhere may remain locked up until this case is resolved, which may take multiple months, if not years.

TROs and preliminary injunctions are forms of injunctive relief. They are meant to preserve the status quo by (typically) preventing a party from taking certain actions that would cause irreparable harm to the party seeking injunctive relief. TROs and preliminary injunctions are considered "one of the most drastic tools in the arsenal of judicial remedies."

A party seeking a TRO must file an application requesting that the court preserve the status quo until the court has a chance to hold a hearing on the preliminary injunction motion. If issued, a TRO remains in place until the preliminary injunction hearing date. Time is usually of the essence: a court may conclude that a party that delayed in filing an application for a TRO has failed to demonstrate the urgent need for such extraordinary relief. If the moving party is able to prevail at the preliminary injunction hearing, the court will issue an order prohibiting certain actions by the non-moving party until the case is resolved.

Preliminary injunctions are considered an "extraordinary remedy," and accordingly, moving parties must meet a high standard in order to prevail. A party seeking injunctive relief must show likelihood of success on the merits of its claim and irreparable harm in the absence of a preliminary injunction. The court will also take into consideration the hardship on defendants should an injunction be granted

TWA may not only seek an injunction to prevent Galloni from publishing the tasting notes, but may also demand a court order "forcing" him to produce those notes to TWA. This constitutes a request for "mandatory injunctive relief" - i.e., a court order directing specific conduct by the non-moving party. Courts exercise heightened scrutiny in such situations.

The complaint suggests that TWA will seek a TRO and preliminary injunction in the near future. Indeed, TWA is free to move the court for a TRO at anytime, even before the 21-day time period for defendants to file a formal answer to the complaint has expired. And given the need to show likelihood of success on the merits, TWA will need to provide evidence to support its allegations of wrongdoing and harm. In short, should TWA follow through with its stated plan to seek a TRO and preliminary injunction, it will need to present a preview of its case-in-chief.

A PDF of the complaint is available here: The Wine Advocate, Inc. v. Antonio Galloni.

For more information, please contact John Trinidad (jtrinidad@dpf-law.com) or John Heffner (jheffner@dpf-law.com).

Monday, March 11, 2013

The New Form I-9 Has Arrived!

The U.S. Citizenship and Immigration Services (USCIS) posted its new Form I-9, Employment Eligibility Verification on its website Friday, March 8, 2013. The form is available for immediate use by employers. Employers should begin using it as soon as possible, but if they need to update their internal procedures prior to implementation, employers may continue to use other previously accepted revisions until May 7, 2013. After that date all employers must use the new document for each new employee hired in the United States.

The revised Form I-9 features new fields and a different format designed to reduce errors. The instructions included with the form are quite extensive, and provide a more detailed explanation of the information employees and employers must provide in each section. The new I-9 Form is available here for your review and use: http://www.uscis.gov/files/form/i-9.pdf.

With questions about the new Form I-9 and all things employment-law related, email or call Greg Walsh at gwalsh@dpf-law.com or Jennifer Phillips at jphillips@dpf-law.com.

Wednesday, March 6, 2013

Employers: New FMLA Posting Required March 8, 2013



The United States Department of Labor (“DOL”) has implemented new rules concerning the Family Medical Leave Act (“FMLA”) Regulations.  All covered employers (an employer with 50 or more employees within a 75 mile radius) will need to post the DOL’s new posting containing the rules as of March 8, 2013.  You can obtain the required posting here: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf

The most important notable change is that servicemember care leave is now available for employees to care for family members who are covered veterans undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred or aggravated in the line of duty on during active duty.  A covered veteran is one who was discharged or released under conditions other than dishonorable within the five-year period preceding the date the employee first takes leave to care for the veteran.

For more information about the new rules you can contact Jen Phillips at contact jphillips@dpf-law.com or consult the DOL’s fact sheet at http://www.dol.gov/whd/fmla/2013rule/fs-general.htm.