Winery Loses Trademark Suit Against Other Winery Over The Term 'Signature'

from the drink! dept

I'm going to keep ringing the warning bell about how the explosive growth in the beer and wine businesses has resulted in a similar explosion in trademark disputes until people start listening. An industry that has benefited from so much interest and competition is eventually going to find itself with a massive litigious roadblock on its hands if something isn't done. That said, the typical trademark dispute in the alcohol spaces normally deals with fairly creative names, artistic labels, or cross-industry trademark concerns. Less common are the types of trademark disputes in which the trademark in question is laughably broad or common.

Less common, but not completely absent, however. In Australia, for instance, one winery sued another over a trademark it holds on the word "signature." The suit failed for exactly the reasons you're thinking of.

Yesterday the court dismissed an application by Yalumba against the Jacobs Creek Reserve Barossa Signature range, which claimed the Pernod Ricard term infringed on the Yalumba trade mark, “THE SIGNATURE”. The fight was provoked by Yalumba owner Robert Hill-Smith when Pernod Ricard released three Jacobs Creek red wines in September 2015 with “Barossa Signature” on the label.

In her judgment today, Natalie Charlesworth said the case came down to three questions: whether Pernod Ricard used the words “Barossa Signature” appropriately under the Trade Marks Act, whether it was deceptively similar to the Yalumba Trademark, and whether Pernod Ricard used the term “in good faith to indicate the kind, quality, intended purpose, geographical origin or some other characteristic”.

In the ruling itself, Charlesworth goes on to answer those three questions, though she stops herself after the second of them. She reasons that if Prenod Ricard used the words appropriately under the law, as she affirms, and that such use is not going to confuse the public into the origin of the product, as she also affirms, then the answer to the third question doesn't matter. She goes on to note the differences in trade dress and also notes that the trademarked term "The Signature" is devoid of origin-defining value. Therefore, the lawsuit is dismissed.

As is typical, the ultimate fault for all of this is upon whoever thought approving a trademark for a term like "signature" for an industry overflowing with "signature" labels was a good idea. The term is generic in identifying premier products within a brand. It's used all over the place. How this trademark application ever passed the smell test in Australia is beyond me.

Filed Under: australia, signature, trademark, wine

DailyDirt: Old, Old Wine, Goes To My Head...

from the urls-we-dig-up dept

It's actually pretty easy to fool tastebuds when it comes to aged wine -- a more expensive-looking bottle or just a good story is sometimes enough to make people think a wine tastes better than it does. No one trusts wine that comes out of a plastic spigot on a box, but if you tell people you've gone to extraordinary lengths to store wine for years, some folks are willing to cough up thousands of dollars for the chance to drink it. If you're a knowledgeable wine drinker with a lot of disposable income, check out a few of these aged wines.

• A Portuguese winemaker tried aging some wine at the bottom of a lake for just a few months. The resulting wine tasted different (much better?) from the same batch of wine aged normally -- so maybe there will be more wine aged in lakes soon. [url]
• Bottles of wine found in centuries-old shipwrecks can fetch insane prices at auctions, and apparently the wine doesn't turn into vinegar. Wine aged in barrels under the sea seems to produce a better wine more quickly, so who's going to create a Kickstarter project for a water-filled wine storage cabinet? [url]
• Residue from ancient wine -- about 3,700 years old -- could provide hints into the early history of winemaking. The oldest known wine is about 5,000 years old, and it probably didn't taste that much like modern wine. [url]
• Not every old bottle of alcohol found in an old shipwreck turns out to be a winner. Some 170 year old champagne survived time and was still drinkable, but it wasn't exactly worth the wait. [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: alcohol, beverages, drinks, shipwrecks, taste, wine, winemaking

Middle Earth Enterprises Attempts To Block Wine Importer From Using The Word 'Hobbit'

from the stop-wining dept

We've seen all kinds of strange trademark actions revolving around the works of Tolkien, including threats against holiday campsites and pubs. The dual threat of dumb in these disputes always ends up being both the protectionist aims against businesses that don't operate anywhere near the literary or theatrical realms in which Tolkien's works normally operate and the sketchy history of the term "hobbit" itself, with it being rather clear that Tolkien both didn't invent the word itself and actually based his hobbit characters on previous fictional works. This of course hasn't precluded anyone with any kind of ownership stake in rights associated with Tolkien from sending out threats to anyone and everyone that in any way uses the term.

Which brings us to Middle-Earth Enterprises, owner of some of the rights to Tolkien's works and owned by film producer Paul Zaentz, and its apparent opposition to a trademark application by a wine importer, because why the hell not?

A tall wife and her short husband are locked in a legal battle over whether they are allowed to have the word 'Hobbit' in the title of their wine business. Stuart and Elise Whittaker set up Giraffe and Hobbit, which imports wine from small vineyards in Provence, France, in the summer of 2014 to poke fun at the difference in their heights. But American company Middle-earth Enterprises, which owns the copyright to the word 'Hobbit', is trying to block the couple's attempt to register the company as a trademark.

Mr Whittaker said: "We applied for the trademark with the Intellectual Property Office, we decided on the name already, it had nothing to do with the Hobbit film or Lord of the Rings. It is a reference to the fact my wife is quite tall and I'm not so tall."

This is nearly the definition of when a term either becomes generic in nature or too broad to deserve wide trademark protection. In naming their company, the Whittakers weren't thinking about Tolkien. Hobbit meant "short person" to them, not "race of people from the The Lord of the Rings universe." When coupled with the fact that theirs is a wine business, having nothing to do with the film or literature industries, the opposition from Middle-Earth Enteprises leads us to a common mantra: this is not what trademark is for.

Par for the course, the opposition was carried out in the most irritating manner possible.

A couple of months after attempting to register their trademark, Giraffe and Hobbit, the couple were sent a Notice of Threatened Opposition from American firm The Saul Zaentz Company.

The 36-year-old added: "We got the Notice of Threatened Opposition the day before it was going to go through and a registered trademark."

The diminutive Whittaker goes on to note, correctly, that Tolkien admitted that he didn't come up with the term. This matters less in trademark terms than copyright, but is still an indication that the term is not unique or source-identifying. Meanwhile, it stretches credulity to think that Middle-Earth Enterprises could somehow show that there would be confusion at stake here. But, hey, just another day in the world of trademark bullying by someone associated with Tolkien.

Filed Under: hobbit, tolkien, trademark, wine
Companies: giraffe and hobbit, middle earth enterprises

Barefoot Wine Contests Trademark Of Barefoot Kombucha: Tea Or Wine, Who Can Tell?

from the putting-the-tea-in-trademark dept

We've had a few instances in the past involving wine-makers and needless trademark spats with companies in completely unrelated industries. The time Trek Bicycle went after a winery, comes to mind for instance. More recently, and somewhat more appropriate to this post, was the trademark dispute between a winery and brewery with similar names. The question in that case was whether or not wine and beer were distinct enough products so as to be essentially operating in different industries and, therefore, not fall under the trademark provisions for their respective marks.

This case is even dumber, as Barefoot Wine is contesting the trademark registration of Barefoot Kombucha. Kombucha, you may not be aware, is a tea drink, and Barefoot Kombucha isn't even an alcoholic drink.

A Virginia husband-and-wife kombucha operation is defending its name in trademark court against the world’s largest winery. Ethan and Kate Zuckerman, the couple behind Barefoot Bucha, are currently involved in trademark litigation with E. & J. Gallo, the parent company of Barefoot Wine, which opposed the craft kombucha brand’s trademark application earlier this year, claiming the brand is “confusingly similar in appearance, sound and meaning to the Barefoot Marks.”

So the side discussion of this spat could revolve around the logos of the companies (which are somewhat dissimilar), whether or not the inclusion of the specific kind of drink, wine vs. Kombucha, would negate any customer confusion, or exactly how similar the total packaging of the two company's products is (not very). But we shouldn't really have to do any of that. One of these products is tea and the other is wine. One of them is alcoholic and the other is not. If that isn't enough of a distinction to declare that the two companies operate in different marketplaces, then I don't know what is.

Kate Zuckerman echoed a similar sentiment in a call with BevNET Wednesday, saying “Trademark law was written to protect consumers but in practice a larger company can challenge a smaller business in court and it’s a lengthy, time-consuming, expensive, stressful process.”

Zuckerman also argued against the wine corporation’s aforementioned “confusingly similar” claim that consumers would mistake the products for one another in stores.

“Kombucha is a totally different product from wine,” Zuckerman added. “We’re carried in different retailers, we’re in different bottles We just don’t believe it’s likely consumers drinking kombucha are going to mistake our product for their product.”

I went to get a bottle of wine but ended up with this bottle of tea... said nobody ever in the history of drinking. And, look, I take this seriously as an avid wine-drinker. I'm the exact kind of consumer Barefoot Wine purports to be concerned about. I assure you there's no confusion here.

The post mentions that the two companies have been in contact in order to settle this issue. Hopefully that amounts to Barefoot Wine backing off.

Filed Under: barefoot kombucha, barefoot wine, tea, trademark, wine
Companies: barefoot bucha, e&j gallo

Trademark Dispute Between Brewery And Winery Over Northstar Brand

from the drinking-games dept

Spend five minutes going through the exploding-number of posts we've done over the past two years about trademark scuffles in the craft brewery industry and one thing will become abundantly clear: craft alcohol has a huge trademark problem. Interestingly, craft brewers had had a traditionally amicable set of unwritten rules when it came to trademark disputes, often times choosing to work direclty with each other to find agreeable resolutions and generally being quite awesome to each other when this sort of thing came up. Under those conditions, craft brewing has exploded in popularity and the number of brewers in the United States has likewise exploded. These past two years have seen a departure from the awesomeness of the past, as trademark disputes have become more common.

But the latest trademark dispute involving a craft brewery is going to turn this into a whole different animal, as a brewery and a winery are bickering over the term "Northstar."

A Washington state wine producer this week filed a lawsuit in U.S. District Court against Boulder's Twisted Pine Brewing Company, alleging trademark infringement and other unfair practices. The suit revolves around the local brewery's award-winning Northstar Imperial Porter, which Ste. Michelle Wine Estates says infringes on its Northstar-brand wine by using the same name. The specific complaint, filed Thursday in Seattle, includes allegations of federal trademark infringement, federal unfair competition, unfair competition under Washington State Common Law, Washington state consumer protection violation and common law trademark infringement.

I can't recall whether I did so in public, but I've been telling my fellow Techdirt writers for over a year now that the USPTO needed to get out in front of this exact situation by drawing a distinction between the wine and beer industries. This situation is the reason why. Now that craft breweries are becoming as numerous and popular as the plethora of United States wineries, this clash of brands and terms had to happen. Had a bright line been drawn between these two very distinct industries, which overlap very rarely (winemakers don't often also make beer as a matter of percentages), this suit could have been tossed immediately. Instead, we're forced to ask a really dumb question: would the kind of person likely to buy Twisted Pine's Northstar Imperial Porter be confused into thinking they were buying something from Ste. Michelle Wine Estates because they offer a Northstar-branded wine?

No, they wouldn't. Nobody has ever gone out looking for a specific wine brand and wondered if that brand also sold beer. Conversely, nobody has ever gone out to buy a porter brew and wondered if the brewery bothered to make wine for some reason. That both companies sell alcohol doesn't matter any more than the Atlanta Hawks and Chicago Blackhaws are both sports teams: they operate in two different markets and industries. As Brendan Palfreyman, an attorney involved in the alcohol industry, notes, this is all going to come down to the question of how similar wine and beer are.

"Often times, an important issue in these types of disputes is the relatedness of the goods, because, in order to find trademark infringement, courts will look to not only how similar the trademarks are, but also how similar the goods here. Here, a key issue will likely be whether the court finds that beer and wine are 'related goods' for trademark purposes."

They shouldn't be, period, paragraph. Wine and beer are as distinct as bottled water and soda. Perhaps a ruling in this case will put us on the road to a firm distinction. The craft brewery industry has enough of a trademark problem as it is.

Filed Under: beer, liquor, northstar, trademark, wine
Companies: ste. michelle wine estates, twisted pine brewing company

DailyDirt: Uses For Wine (Besides Drinking It)

from the urls-we-dig-up dept

Drinking wine on special occasions is a popular tradition all over the world, but it seems like more people would like some other excuses for drinking wine, too. Red wine had gotten a lot of publicity for various health benefits, but if you want to drink some wine, maybe you should be asking yourself why you need so many different reasons. Here are just a few interesting links about wine to go with your favorite beverage.

• There's a persistent statistic that wine drinkers tend to live longer than teetotalers or people who drink other forms of alcohol. But according to a recent study, those wine drinkers also correlate highly with people who possess healthier habits in general. So wine could merely be the drink of the healthier -- and not some magic elixir for longer life. [url]
• Some Australian researchers have developed a process to turn wine into clothing -- and it also works with other forms of alcohol. Bacteria are used to ferment the alcohol into a formable fabric, and the garments retain characteristic odors of their original beverage. So if you really like the smell of beer, there's a perfect shirt for you.... [url]
• There's a possible "miracle molecule" in red wine called resveratrol -- and it seems to give older mice some improved mobility. Consuming more red wine might seem like the easy answer for older people to gain mobility improvements, but the study also suggested that a 150lb human would have to drink 700 4-ounce glasses of red wine a day to see an effect. Good luck with that! [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Filed Under: alcohol, beverage, fabric, food, health, resveratrol, teetotalers, wine

DailyDirt: Red, Red Wine...

from the urls-we-dig-up dept

Alcoholic beverages have been part of human culture for thousands of years. But what do we really know about these drinks? Red wine goes with red meats, and white wine goes with fish... Liquor before beer, you're in the clear... Here are just a few more interesting tidbits of information regarding ethyl alcohol.

• A group of Japanese physicists discovered that red wine could induce superconductivity in an iron telluride -- so they tried a bunch of other alcoholic beverages like sake, beer and white wine to try to figure out what was going on. The researchers found that more tartaric acid in red wine correlated well with the superconductive state, but the alcohol also played some role. With just a bit more study, red wine will solve all of our energy problems and allow us to live forever.... [url]
• University of Connecticut wine researcher Dr. Dipak K. Das published fake data on the benefits of resveratrol, so there's some doubt that this component of red wine has as many magical health benefits as some have reported. Still, the anecdotal evidence behind the "French Paradox" makes people think red wine has more than a correlation with a lower incidence of heart disease (even if there's no causal relationship). [url]
• The 'drunken monkey hypothesis' proposes that humans like alcohol because our primate ancestors were highly dependent on fruits in their diet... and ethanol can be found in overripe fruits. But did those drunken monkeys exhibit superior Kung Fu skills? [url]
• You might think that wine experts can tell the difference between an expensive French wine and a much cheaper wine from New Jersey, but you'd be mostly wrong. Wine tasting is hard. Sometimes experts can't even tell the difference between red and white wines -- and the perception of wine can be influenced significantly by the label on the bottle. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Filed Under: alcohol, beverages, drink, food, french paradox, liquor, resveratrol, superconductivity, tartaric acid, taste, wine

DailyDirt: Endless Rain Into A Paper Cup....

from the urls-we-dig-up dept

It's interesting how packaging can affect the way we consume products and perceive how they taste. Just adding some coloring to foods can make them seem to taste completely different. But changing the color of the packaging might have a similar effect? Here are some interesting packaging changes for some common beverages.

• Boxed wine has gained some acceptance with wine drinkers, but will a slightly smaller version of boxed wine sell well? Taking it to the next logical step, there should be "juice box" size wine boxes coming out, too. Who wants to sip wine through a tiny straw? [url]
• Some folks seem to hate plastic water bottles, so now there's a paper milk carton without milk, filled with water. Looks like ultra-skim milk -- 0% milk. [url]
• Drinking water from a paper cup is okay.. but a paper bottle? Paper water bottles haven't exactly taken over since they were introduced, so... [url]
• Coca-Cola has stopped making its 'White Christmas Cans' after a month of selling them because consumers don't like the new look of the can -- and some people think it tastes different. The white cans also look a bit too much like Diet Coke, so some drinkers are getting a few more calories than they expected. [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

Filed Under: cans, paper, plastic, water, wine
Companies: coca cola

DailyDirt: All The Little Things

from the urls-we-dig-up dept

Making a product look better than one of its competitors to consumers sometimes comes down to the little things. Useful little features here and there can really add up. But sometimes marketing focuses on things that shouldn't really matter. Here are a few examples that could go either way.

• PUMA is selling shoes without a shoe box. The Clever Little Bag saves all kinds of energy and pollution, but does it really sell more shoes? [url]
• Real wine enthusiasts probably aren't going to take a picture of a security code to make sure their wines are authentic. Call me when there's an iPhone app for isotope analysis... [url]
• The illusion of cleanliness or freshness is a popular marketing gimmick. Everything seems fresher if you put a picture of a fruit on it. [url]
• To discover more interesting advertising-related content, check out what's floating around on StumbleUpon. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Filed Under: authentic, bag, packaging, shoes, wine
Companies: puma

You Can't Turn Bicycles Into Wine: Trek Bicycle's Trademark Lawsuit Against Trek Winery Dismissed

from the drink-up dept

We keep seeing cases where companies think that a trademark gives them a total monopoly over the trademark. That, of course, is not true. Not only is a trademark only supposed to be limited to cases of confusion or (in more recent construction) dilution, it's also only supposed to be applied in areas of commerce that compete. In other words, it's perfectly fine to use the same mark in totally different business areas. But, of course, some companies simply refuse to believe that (Monster Cable is famous for ignoring this, for example). But, thankfully, judges are quite aware of this. Brian points out that a judge has dismissed a trademark lawsuit brought by Trek Bicycle Corp. (makers of, you guessed it, bicycles) against a small northern California winery called Trek Winery. In this case, the lawsuit was dismissed for jurisdictional problems, in that the case was brought in Wisconsin (where the bicycle company is based), despite the vast majority of the winery's business being in California. But, still, the judge questioned whether or not there could actually be any confusion at all in Wisconsin. Apparently, the bicycle company cited three orders to Wisconsin -- two of the orders went to relatives of the winery's owners and one order went to a spouse of an employee of the bike company (and that single order was just a test to confirm that the winery would deliver to Wisconsin). Those are hardly quantities that would threaten the bike company's business.

Of course, this does mean that a lawsuit could be filed again in Northern California, but again, you have to wonder who's confusing a bicycle with a bottle of wine? Separately, another article on the lawsuit notes that the producers of Star Trek were originally concerned about the wine, but eventually decided it wasn't worth pursuing.

Filed Under: bicycles, jurisdiction, trademark, trek, wine
Companies: trek