Another Reason To Distinguish Alcohol Markets In Trademarks: Actual Infringement Defended By Use Across Alcohol Products

from the works-in-reverse-too dept

A brief review of all of the articles I've written in these here pages about sweet, delicious alcohol mostly have to do with trademark spats between drink-makers, including many in which I've made the point that it's high time for the USPTO to get a little more subtle when it comes to its alcohol marketplace designations. Beer isn't wine, and wine isn't liquor, and the public looking to buy one of those is quite unlikely to confuse one product for another. The focus of many of those posts was how this lack of distinction between the alcohol markets has resulted in too many aggressive trademark lawsuits and threat letters that hardly seemed necessary.

But there is a flip side to all of this that serves as another perfectly good reason for the USPTO to make a change. Recently, one liquor distiller sued another in what seems like a fairly plausible trademark infringement case.

Few Spirits, the maker of Breakfast Gin, has taken the Michigan-based Gray Skies Distillery to court over the planned December launch of its new whiskey, Breakfast Rye. As reported by MLive.com, Few’s counsel sent a notice in October telling Gray Skies it had “prior rights and registration” to Breakfast Gin, and told it to cease any use of Breakfast Rye. In the lawsuit, it alleged trademark infringement, unfair competition, and violation of Michigan’s Consumer Protection Act. In response, Gray Skies submitted a letter of protest to Few’s pending trademark application.

The Breakfast Gin producer is now seeking an injunction to prevent Gray Skies from selling Breakfast Rye, including damages if it goes up for sale in stores or in bars.

Now, we could spend time talking about just how valid a trademark the word "breakfast" is in the liquor industry -- whether it's generic, whether it's overtly common, and whether or not its actually somewhat descriptive of the flavor or ingredients within each liquor product itself. Frankly, I don't want to do that in this post. The trademark seems valid to me and it certainly isn't striking any well-tuned outrage chords in my psyche.

But one of the defenses proffered by Gray Skies' attorney, Thomas Williams, in its opposition to Few's trademark application shows exactly the problem with a lack of market distinctions in the alcohol industry, except in reverse.

"The use of 'breakfast' to describe alcoholic beverage products that have characteristics, aromas or flavors reminiscent of breakfast foods, is replete in the marketplace," Williams wrote. "For example, Founders Brewing Company markets and sells Founders Breakfast Stout and Founders Canadian Breakfast Stout. Dogfish Head markets and sells Beer for Breakfast Stout."

Except that none of that should actually matter. Few shouldn't be denied a trademark on the word "breakfast" due to the plethora of beer brews using the word in their names. Different alcohol medium, different customer base, different market. That the USPTO doesn't recognize any of that is the problem, of course, but it's disappointing to see the lawyers for a member of the industry ignore all of that over a simple trademark opposition. It's worth noting as well that the same lawyer, Williams, does not trot out this defense in response to the lawsuit Few filed. There instead he relies on the overall trade dress and, remarkably, claims that gin and whiskey customers are discerning enough to discriminate between types of spirits.

One of the factors in trademark law focuses on the likelihood of confusion over a product by consumers. Buyers of craft spirits are very discriminating, Williams said.

"I think we would vigorously dispute that anybody's going to be confused when you put the two products side by side in the market, he said.

Pick a lane, counselor.

By ignoring obvious market distinctions in the alcohol industries, the USPTO has allowed lawyers like Williams to try to play both sides of the argument. On the one hand, oppose a trademark because of similar marks in the beer industry. On the other hand, claim that similar marks within the spirits industry are just fine because gin and whiskey are basically in different markets. A little clarity through common sense any time now, USPTO.

Filed Under: alcohol, breakfast rye, breakfist gin, trademark
Companies: few spirits, gray skies

Federal Court Says Utah Theater Can Serve Up Beer And R-Rated Movies Simultaneously

from the time-to-rub-out-a-new-resume,-regulators dept

Utah and Idaho -- two states with more in common than a border -- have been enforcing First Amendment-trampling liquor laws preventing adults viewing certain films from enjoying adult beverages while doing so. I'm not talking about porn theaters, although the use of the word "adult" certainly leads the mind in that direction. No, I'm talking about regular, old-fashioned R-rated films no one really has much objection to adults viewing, even those who often object to adults viewing films rated X and up.

In a clear waste of public funds and law enforcement resources, officers are sneaking off to R-rated films at movie houses serving alcohol in hopes of catching them engaged in double-devilry. The movie houses have been fighting back, noting (in lawsuit form) the enforced laws are unconstitutional and inconsistently enforced. Theaters in Utah and Idaho could expect visits from undercover prudes for films like "50 Shades of Grey" and, apparently, "Deadpool."

Theaters in both states sued their respective state alcohol boards. Brewvies -- the theater suing the state of Utah -- has been handed a win. Elizabeth Nolan Brown reports on the federal court's decision in the delightfully-titled article "First Amendment Protects Cinema's Right to Show Unicorn Masturbation Scene While Serving Alcohol, Says Judge."

A Utah movie theater that dared to serve alcohol during a sexually explicit movie has won its legal battle against the state's Department of Alcoholic Beverage Control (DABC).

"The State has violated the First Amendment by bringing an administrative enforcement action against a mainstream motion picture theater showing an R-rated movie," U.S. District Judge David Nuffer wrote for the court Thursday.

The decision [PDF] details a lot of the backstory, which includes state officials singling out Brewvies to score cheap wins for the state alcohol board. It also shows the state, after harassing Brewvies multiple times, suggesting it could preview all movies before showing (the court calls this "untenable"), alter the movies it shows to edit out "obscene" content (forbidden by contracts with motion picture studios), or just stop serving alcohol (lose a great deal of its profits).

It also shows an attorney at the state's attorney's office was the source of the sole complaint against Brewvies' showing of Deadpool -- the end result of which was even more harassment of the theater and, consequently, this lawsuit.

Between February 12, 2016, and March 24, 2016, Brewvies showed the movie Deadpool on one of its screens. A friend of Sheila Page, the attorney at the Attorney General’s Office who represents the DABC in enforcement proceedings, mentioned to Ms. Page that Brewvies was showing Deadpool. Once Ms. Page received the information from her friend, she sent an email to Defendant Margaret Hardie, who has been the DABC Compliance Officer assigned to Brewvies since 2014. In her email to Ms. Hardie, dated February 22, 2016, Ms. Page wrote: “I hate to bring this up, but it is just too blatant to ignore. Brewvies is showing Deadpool. The reviews describe explicit sex scenes and male and female frontal nudity. I know some people who have seen it, and they confirm that it is very raunchy amid the bloody violence. Perhaps you should refer it to [the State Bureau of Investigation].” That email, which was the only complaint received by the DABC about Brewvies showing Deadpool, triggered a referral to the State Bureau of Investigation.

Undercover officers were sent to "investigate." It would have been cheaper to keep them home. All three had already seen the movie, one of them multiple times. But their attendance generated an inadvertently-hilarious report on all the naughtiness contained in Deadpool... and gave Brown's article its unforgettable title.

Officer Bullock’s report describes certain scenes of the movie in terms of the prohibitions of Subsection 7. For instance, he states that the male and female characters were “shown numerous times engaging in acts or simulated acts of sexual intercourse” and that the male character “is shown on his back under bed sheets briefly engaged in masturbation or simulated masturbation using a stuffed unicorn toy.” He also describes a scene where the woman was wearing a leather bikini, with an imagined strap-on penis “that isn’t shown,” and “has her groin area pressed against the man’s posterior,” and she tells him to relax as he is sweating and grimacing. She then bends down and says, “Happy Women’s Rights Day” during what Officer Bullock calls “the sodomy or simulated sodomy scene.”

Officer Bullock also says that during one sex scene, the male character fondled the woman’s bare breasts and, finally, during the credits, Officer Bullock describes “a drawing of the main character (male) . . . ‘as he rides on the back of a unicorn, he rubs its horn briefly until the horn shoots out rainbows (simulating orgasm).”

Officer Bullock (along with Officer Cannon -- Utah's pro prudes seem to have the porniest of surnames…) presented their "findings" and the state went to work getting itself sued. In the end, it's the state hearing a judge whisper "It's First Amendment Day every day!" in its ear as it drives its point home.

The State offered only one governmental interest in support of Section 7’s restrictions: avoiding potential negative secondary effects from combining sexually explicit images with alcohol. Though this may be a compelling governmental interest, Section 7 is not the least restrictive means for accomplishing it.

Section 7 is overinclusive. A statute is overinclusive, and thus facially invalid, if there is a showing that the “law punishes a substantial amount of protected free speech, judged in relation to the statute’s plainly legitimate sweep.” If the statute is found to be overinclusive it will “invalidate all enforcement of that law, until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.”

Section 7 is overinclusive because it captures mainstream content.

The court continues, pointing out how the state's alcohol regulations serve to unconstitutionally regulate speech, a definite forbidden (government) act.

Section 7 reaches “many films that are far removed from what is colloquially termed ‘hard core,’ or even ‘soft core,’ pornography.” The State admits this. It makes no contention that Deadpool is pornography. The State only argues that by analogy short portions of Deadpool are like the films typically found in an adult theater.

Unlike the statute in Baby Dolls Topless Saloons, no language limits Section 7’s application to those businesses that are characterized by regularly showing sexually explicit material, who make that their essential nature. The State has violated the First Amendment by bringing an administrative enforcement action against a mainstream motion picture theater showing an R-rated movie. That demonstrates the breadth of Section 7’s reach. Section 7’s restrictions impose unacceptable limitations on speech that the State admits should be accorded full First Amendment protection.

State booze regulators will have to go back to the drawing board. The statute needs to be severely narrowed before it can be considered constitutional. Undercover officers Bullock and Cannon will have to start watching R-rated movies on their own time, on their own dime, and presumably without a notebook in one hand and a hard on for free speech oppression in the other.

Filed Under: alcohol, first amendment, idaho, morality police, movie theaters, movies, r-rated, utah
Companies: brewvies

Dunks And Drunks: Jagermeister Blocks Milwaukee Bucks Logo Trademark Application

from the deer-milwaukee dept

Just when you think you've seen it all in silly trademark filings, along comes a liquor company to block the trademark application for the logo of an NBA basketball team. Jagermeister, a liquor I haven't thought about since my college days because I'm a grownup that drinks grownup drinks, has decided that the logo for the Milwaukee Bucks is too similar to its own logo and must be stopped.

Germany-based Mast-Jägermeister SE has filed its opposition to the Milwaukee Bucks trademark application with the U.S. Patent and Trademark Office. The notice, filed Thursday, argues that there is a likelihood of confusion between the two logos, a false suggestion of connection and a dilution of the Jägermeister logo’s “distinctive quality.” Jägermeister says the services provided by the two organizations “are so related” that it creates the potential for confusion. The potential for confusion “is enhanced by the extraordinary fame” of Jägermeister’s trademarks, the notice says.

Here are the logos in question.

Similar? Sure, I suppose, although there are fairly distinct differences between the two logos that would probably keep any customer confusion at bay. There are those lines within the circle on Jagermeister's logo, for instance. Also that big cross at the top, there, I suppose, because Jesus was a huge fan of Bavarian digestifs. Also, and this is a minor point only, the basketball franchise's name is right there on their logo.

Regardless of all of that, whatever involvement Jagermeister has in markets other than beverages is minimal, it doesn't have anything to do with basketball, nor would it amount to creating any confusion within the public. All of which Jagermeister has essentially acknowledged in a statement saying that that it is really just wasting everyone's time with all of this while trotting out everyone's favorite excuse for paining someone else's ass with trademark law.

On Monday, Jägermeister's trademark attorney, Katrin Lewertoff of Connecticut apologized for the delay and issued a statement suggesting there really is no trademark tiff.

"Jägermeister and the Milwaukee Bucks have been cooperating on this issue for months," she said. "The filing was a formality to preserve our intellectual property rights. We expect to come to an agreement with the team soon and appreciate the climate of partnership and fair cooperation with the Milwaukee Bucks in the process."

Soon after, the Bucks chimed in with, "“The Bucks have been working amicably with Jägermeister throughout this process and we are confident that we will come to a resolution very soon.”

So everyone is going to end up playing nice over this, but Jagermeister had to block the application in order to preserve it's trademark rights. It's the same excuse we see time and time again and it's almost always false. In this case, for instance, the law only obligates Jagermeister to police it's trademarks in the face of true infringement or confusion. There is none in this case, so the blocking of the application was not necessary.

Whatever the purpose of trademark has become in modern times, I doubt the framers had intended it to simply create busy work for lawyers and USPTO employees.

Filed Under: alcohol, basketball, jagermeister, trademark
Companies: jagermeister, milwaukee bucks

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

DailyDirt: Making Spirits Bright

from the urls-we-dig-up dept

There was a time when making your own alcohol wasn't a completely legit thing to do. Sure, now anyone can just go down to a corner store almost any time and pick up a chilled alcoholic beverage, but if you're a real do-it-yourself-er, you won't want to drink just anything that comes in a pretty bottle. Here are a few projects you might want to check out someday when you're not feeling like guzzling something made by Anheuser-Busch-Inbev-SABmiller.

• Folks can brew beer from a lot of unusual stuff, so why not use day-old bread to prevent some food waste? Toast Ale uses surplus bakery bread to make its beer, and it plans to open source its recipe so that more people can find a productive use for baked goods that might otherwise just go in the trash. If you're not a beer drinker, there's also vodka made from potato peels. [url]
• PicoBrew is a way to brew your own beer at home with the convenience of a Keurig coffee maker. So yah, you can make custom craft beer at home, and you just need to buy these fairly sizable packages of pre-measured hops and grains -- then voila, you'll have fresh beer in about a week. [url]
• If you'd like to try to make your own moonshine, but you don't really want to go out into the woods and find a source of running water -- just get a tabletop still for your kitchen. It doesn't even require running water, and it'll make about a half gallon of booze on demand (if you're patient). And maybe make sure to discard the first few drops to make sure you're not drinking too much methanol. [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, beer, beverages, booze, bread, distillation, drinks, food, food waste, moonshine, picobrew, vodka
Companies: anheuser-busch, kickstarter, sabmiller

DailyDirt: Trendy Drinks

from the urls-we-dig-up dept

Some folks like to drink coconut water because it tastes good -- not because it's a fashionable, semi-exotic-sounding liquid that has some specious health claims. Some fads, like drinking raw milk are actually not that healthy. But if you just like trying out new stuff to drink (and carry around in a bottle or cup), check out a few of these links.

• Maybe it's just in Brooklyn that it's cool to drink bone broth from a coffee cup. As long as it's not as expensive as $6 toast, who can argue against a tasty cup of soup? [url]
• Drinking reclaimed water is nothing new, but people are a little repulsed by the idea of drinking water that was recently treated from a sewer system. But maybe people won't be so turned off by beer brewed with 100% treated waste water? Or they might get pissed in multiple ways. [url]
• How about a refreshing pint of mead? It's not just a medieval honey-based drink anymore. A traditional brew would have about 16% alcohol content, but more modern versions have less than 6% or so. Mead is also one of the fastest growing segments in the US alcohol industry. [url]
• If you haven't heard of rooibos tea, well, maybe you haven't really missed out on anything. It's technically not a tea, but a tisane or infusion -- and maybe it's soo four years ago. [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, beer, bone broth, drinks, food, grey water, herbal tea, infusion, mead, reclaimed water, rooibos, soup, tea, water

DailyDirt: Hangovers -- Ain't Nobody Got Time For That

from the urls-we-dig-up dept

Hangovers are pretty common for alcohol drinkers, but oddly, medical science doesn't really have an exact cause for the phenomenon. Sure, there's a bit of dehydration and trace amounts of toxic compounds from some alcoholic spirits, but brain inflammation from high alcohol levels seems to be just something that happens (pending further study). There have been some studies on hangovers, but no reliable cure just yet. If you want to try a few things that might work, check out some of the links below.

• The Hangover Club offers a service to deliver you a certified registered nurse and a drip bag that goes right into your bloodstream -- that's not at all guaranteed to cure a hangover or act as any kind of treatment for a disease. However, if you're otherwise healthy, it won't hurt (too much), and there could be some placebo effects mixed with some actual pain/nausea medications to relieve hangover symptoms. [url]
• A "drunken headache cure" written on sheets of papyrus in Greek has been translated. The treatment involves wearing a kind of wreath around your neck made up of twigs from a particular shrub. Yup. That's probably 100% effective for a hangover. [url]
• Try preventing a hangover by just not drinking as much, and drinking more slowly and eating some food with your drinks. Duh. One drink per hour. And liquor before beer? Nope. [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, dehydration, drunken headache cure, hangover, health, medicine, myths, nausea, pain medication, placebo effects
Companies: hangover club

DailyDirt: Drink No Wine Before It's Time?

from the urls-we-dig-up dept

Some folks are really into aged spirits -- as in old alcohol, not ancient ghosts. But if we can't really trust our tastebuds, will anyone really know if an aged wine is really aged? More importantly, though, does it really matter if no one can taste the difference between a day-old beverage and one that's 15 years old? Maybe some wine/scotch snobs will care, but most drinkers probably won't.

• Chemistry can make a 6-day old rum taste like one that is 20 years old. The method is patented, but knockoffs are springing up -- and presumably, almost "anyone can do it" (well, if anyone really wants to make their own rum, that is). [url]
• Making pear-in-the bottle brandy is a tradition that dates back to the 1700s. It takes a few months for a tiny pear to grow inside a clear glass bottle, and then the fruit is cut from the tree, washed and covered with year-old brandy. It might be difficult to get this process done more quickly. [url]
• The scotch industry has previously marketed its products based on prominent years of aging -- even though age is an imprecise measure of quality. To keep up with demand, more and more scotch makers are selling no-age (or age-free) products that try to promote quality over age. [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, brandy, drinks, rum, scotch, taste

DailyDirt: Drugs Are Baaaad, mmKay?

from the urls-we-dig-up dept

If we really wanted to tackle drug problems, we might want to try alternatives to alcohol that might have antidotes. However, we've tried to outlaw alcohol before, and it didn't turn out too well. Marijuana is beginning to become slightly less illegal (not on the federal level), and some studies show it's not nearly as harmful a drug as some folks believe it is. Put down your bongs, stop giggling at that cartoon you've been watching all day, and check out some of these links on the effects of marijuana.

• Marijuana could actually be a performance-enhancing drug for athletes who run ultramarathons. After running a hundred miles, some runners enjoy some stress-relieving painkillers that prevent nausea and give you the munchies. [url]
• In national polls, almost half the US population admits to having tried marijuana. As more states legalize pot, some health researchers say there aren't enough long-term health studies to assess its risks. [url]
• A recent study of recreational drugs ranks marijuana as the least risky drug -- far behind alcohol, heroin, cocaine, tobacco and meth. But the stats just say you're not going to die anytime soon from weed, not that it's perfectly safe to abuse. [url]

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

Filed Under: alcohol, drugs, marijuana, recreational drugs, smoking, tobacco, ultramarathon

DailyDirt: Ingredients For Creative Environments

from the urls-we-dig-up dept

There are many, many studies on creativity and possible ways to improve the creative output of a group. Monetary incentives are often presented as a way to get people to produce more ideas, but some studies show that money isn't actually a great motivator. Obviously, there are a lot of factors that can influence how creative people are, but it would be nice to isolate a few and see if we can eliminate some practices that are downright detrimental to creativity. It would be great if we found out what really could inspire people, but maybe we shouldn't put too much pressure on the researchers... because that might dampen their productivity.

• Do "politically correct" rules in a workplace stifle creativity? An experiment asked people to brainstorm in groups, with some groups doing a politically correct exercise (and control groups that did not), and mixed gender groups with politically correct training seemed to be more creative. [url]
• If you think alcohol gives you a little creative boost, there's some research that says a blood alcohol level of 0.075% is the sweet spot. You could self-medicate with any alcoholic beverage, but there's a beer brand that has figured out some of the math already -- so you can just drink its "Problem Solver" beer and get to your creative peak with less hassle. [url]
• Will a culture that is more individualistic produce more creative people than a society that favors collectivism? Another brainstorming experiment showed that individualists might come up with more ideas, but collectivists came up with higher quality ideas. [url]

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

Filed Under: alcohol, beer, brainstorm, creativity, culture, ideas, incentives, insights, inspiration, politically correct, problem solver, productivity, workplace