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Thursday, May 16, 2013

New TTB Guidelines on Social Media and Alcohol Beverage Advertising




Earlier this week, the TTB issued an Industry Circular providing additional guidance for alcohol beverage producers, importers, and wholesalers using social media. 

The TTB regulates the advertising of wine, distilled spirits, and beer, and generally prohibits deceptive or misleading advertising.  The TTB also prohibits industry members from engaging in certain advertising practices or making certain statements.  For example, wine advertisements may not disparage a competitor's products or make statements or including designs that are "obscene or indecent."  There are a number of other restrictions in the Code of Federal Regulations.

In addition, there are certain mandatory statements that must appear in advertisements for alcohol beverages, including but not limited to the name and location of the industry member and the class and type of alcohol.

The Industry Circular makes clear that TTB’s regulations regarding mandatory statements and prohibited practices extends to social media channels, including social network services such as Facebook, video sharing sites such as YouTube, blogs, and "microblogs" (which according to TTB, includes Twitter and Tumblr), and mobile applications. 

Here’s a quick summary of the guidelines regarding those channels:

Social Networks (incl. Facebook)
Applies to “fan pages for alcohol beverage products or companies and any content regarding alcohol beverage products posted to the pages by the industry member.” 

Mandatory statements must be included on any “member fan page,” and should not be “hidden or buried.”  TTB “strongly recommends” these statements be included in a conspicuous location, such as the profile section of the fan page (such as the “About” section on a Facebook fan page).  

Video Sharing Sites
Applies to “[v]ideos about alcohol beverages that are posted to video sharing sites by industry members.” 

Mandatory statements should be included in “profile” section of individual videos or on the “channel” information if the industry member maintains a channel.
Blogs
Applies to any blog maintained by an industry member that “discusses issues related to the company, its products, or the industry in general….”  Also applies to “anything posted by the industry member on the blog”

Mandatory statements must be included. 
Microblogs (incl. Tumblr, Twitter)
Applies to  any written statement “calculated to induce sales in interstate or foreign commerce.” 

Mandatory statements must be included and TTB recommends including these statements on the profile page. 
Mobile Applications
Applies to apps for mobile or other handheld devices "related to alcohol beverages."  Such apps are considered "consumer specialty advertisement," similar to ash trays, matches, cork screws, etc.  Thus, only mandatory statement is the company name or brand name of the product. 

A few interesting take-aways from reviewing the TTB guidelines. 

First, industry members that maintain a social network presence, such as a Facebook fan page, are responsible for content that they post, but the advisory seems to carve out posts by consumers on industry member sites or pages.  For example, in discussing social networks, the circular states:  “TTB considers fan pages for alcohol beverage products or companies and any content regarding alcohol beverage products posted to the pages by the industry member to …[be] subject to the provisions of the FAA Act and TTB regulations.”  By focusing on content “posted to the pages by the industry members,” the TTB apparently recognized that alcohol beverage companies should not be held responsible should a “fan” post a comment that violates federal regulations. 

Second, the mandatory information provisions related to "microblogs" do not take into account the fact that Twitter's profile is limited to 160 characters.  While the TTB explicitly stated that each individual "microblog post" (i.e., "Tweet") need not contain the mandatory statements because the 140 character limitation makes it "impractical" to do so, it also recommended that the mandatory statements should appear on the "microblog profile page."

Third, the TTB also stated that if an industry member includes a "link" to another website or other content, the TTB may consider the contents of that link as part of the industry member's advertisement.  Thus, by including a link to other content, the industry member may be responsible should that content fail to comply with TTB advertising regulations.       

Finally, the TTB Industry Circular made no mention of third party marketing websites, and whether producers were responsible should the content of those websites violate the advertising regulations. 

While there are still some unanswered questions regarding federal regulation of alcohol beverage online advertising, one thing is clear:  producers, importers, wholesalers, and anyone involved in the promotion or sale of alcohol beverages should comply with the mandatory statements and prohibited advertising practices regardless of what channel they use for advertising.  

For more information or assistance on alcohol beverage advertising, contact John Trinidad (jtrinidad@dpf-law.com).

This post is made available for general informational purposes only and none of the information provided should be considered to constitute legal advice

Wednesday, May 1, 2013

A Hit Like a Ton of BRIX - Trademark Office Protects Restaurant's Rights in BRIX Trademark


One of the many benefits of obtaining federal trademark or service mark protection is that the Trademark Office will prevent registration of marks which are confusingly similar.

Yountville Partners, Inc., simply by registering its marks BRIX and BRIXX for restaurant and bar services, was successful in preventing the registration of the marks BRIX WINE CELLARS, BRIX CELLARS and BRIX WINE CELLARS and Design for wine bars and restaurant services (“other BRIX marks”).  The Trademark Office refused to register the other BRIX marks for wine bars and restaurant services finding a likelihood of confusion with BRIX/BRIXX marks for restaurant services.  First, the Trademark Office determined that the marks were virtually identical giving no weight to the argument that the words “wine” and “cellars” helped to distinguish the marks.  

Second, the Trademark Office found that the “restaurant services” and "wine bars" and the other services recited in the applications and registrations were deemed to be legally identical.  Applicant’s arguments that its wine bar is “somewhat dark and sophisticated and has a relatively enclosed atmosphere,” while registrant restaurant establishment “has a relatively light and airy atmosphere overlooking outdoor vistas” was unpersuasive.  Further, the Trademark Office was not convinced that restaurant consumers were “sophisticated” stating that “restaurant and bar services can run the gamut in terms of cost and clientele.”

Finally, Yountville Partners, Inc. enjoyed a presumption of exclusive right to nationwide use of the registered marks regardless of its actual extent of use. Thus, the argument that the other BRIX marks were only used in Houston so there would be no likelihood of confusion was unpersuasive.

In the United States, the Trademark Office will work to protect the value of marks for those that avail themselves of the relatively inexpensive trademark and service mark registration system.  However, the USPTO makes decisions as to registration of marks but has no jurisdiction to stop a party from using a mark.  Such jurisdiction rests exclusively with the state and federal courts.  

This opinion, which is not a precedent, was recently obtained in a proceeding before the U.S. Patent and Trademark Office (“USPTO”) Trademark Trial and Appeal Board (“TTAB”) In re Brix Cellars LLC dba Brix Wine Cellars, Serial Nos. 85111647, 85111682 and 85112408 (TTAB 2013).  The following is a link to the opinion:  http://ttabvue.uspto.gov/ttabvue/ttabvue-85111647-EXA-20.pdf.

For any questions or assistance on trademark matters contact Katja Loeffelholz at kl@dpf-law.com.