Is Your Trademarkable Beer Name Distributable?

It’s no secret, I’m a big believer in proactive brand protection. To that, I’ve been pleased to see breweries get out in front of trademark issues by asking for early clearance reports for their new beer names, then filing a 1(b) trademark application to secure the name. It’s a big part of what I do at Reiser Legal.

However, I wanted to flag one issue for those working through some potential beer names with the beer attorneys. I’ve recently noticed a number of published trademarks that appear to tout the effects of drinking alcohol. There have been word marks and then also boundary-pushing design marks as well. Bear in mind that, even if a mark makes it past USPTO’s initial review, to get the mark to register, a brewery would eventually have to put that mark into use in interstate commerce. For most breweries, the way to prove that use is packaging and shipping across state lines. But, to package and ship across state lines, you’ll need a TTB-approved label (Certificate of Label Approval, or COLA for short)—even some states require a COLA before getting product into retail in state. Notably, TTB has strict labeling requirements and rejects labels that go too far in touting alcohol’s effects.

In other words, even if a brewery can obtain a federal Notice of Allowance for a beer name, federal (or even state) labeling laws might not allow the brewery to package and ship that beer anywhere but the brewhouse, jeopardizing the ability to actually get that trademark to register. Side note there, as beer-blogging-brethren have noted, TTB has been looser on animals who are appear under the influence than humans.

Keep in mind also that TTB has other bases to reject beer names / labels, and even if they don’t, a state authority may find a boundary-pushing mark or design objectionable. Designs or marks that would draw kids in, for example, are problematic at both levels—which might make some branding angles hard to build out, even if a brewery gets the trademark for the direction it wants its brand to go. Here at Reiser Legal, we love the DIY ethic that pervades the brewing industry. However, sometimes shooting a branding direction to a beer attorney is worth it, before doing too much building out and, worse, investing in a trademark direction that has uncertain label approval chances.

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Washington State Beer Label Requirements

So, you’re ready to package. Awesome. What should be top of mind when preparing a Washington-ready beer label? There are a few things to note but, in general, compliance with TTB regulations will get you close to compliant with LCB. However, there are some extra Washington laws and regs to keep in mind.

If a Washington brewery is ready to package and sell—or an out-of-state brewery is interested in beer distribution in the State of Washington—there are certain labeling requirements set forth by the Washington legislature and the Washington Liquor Control Board (LCB). Fortunately, the beer labeling requirements are not particularly cumbersome. Notably, LCB’s direct label approval is not required. However, LCB does require that in-state breweries and out-of-state breweries alike obtain a federally approved label, known as a Certificate of Label Approval (COLA) before getting beer on the shelves. To be ready to ship or distribute beer in Washington, the producer must submit a copy of the federal COLA to LCB and, it goes without saying, have proper licensure. If a brewery makes changes that require a new label approval from TTB, the brewery likewise will have to submit that new label to LCB.

As for Washington’s own beer-labeling requirements, if a brewery is complying with federal regulations, the brewery is likely to be okay under LCB’s approach. However, the LCB does reserve the right to deny any label that doesn’t conform to their basic requirements and rules. What are those? Things you’d expect, and things that the Alcohol and Tobacco Tax and Trade Bureau (TTB) mostly already requires (though LCB and TTB may disagree about some subjective calls). No label can be misleading, you can’t make labels that especially appeal to children, and if you’re going to show adults on the label, the depiction has to be dignified and can’t promote illegal consumption of liquor. There are some other ones, so be sure to review the relevant regs and statutes, or shoot the proposed label to your beer lawyer for a quick review before submission.

As a reminder that regs can be quaint at times, LCB expressly prohibits subliminal messaging on labels or in beer advertising. So, for you crafty cats, make sure there’s nothing up your sleeves.

Last and maybe most notably of all, if a brewery wants to ship strong beer in Washington (that’s over 8% ABV), the brewery must include the ABV amount on the label. This differs from federal requirements, as TTB does not require an ABV statement. Something for producers to keep in mind.

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Beer Label Approval Process: TTB Employee Battle Martin Gets Some Headline Love

For those considering shipping beer across state lines, to do so lawfully, you’ll need a Certificate of Label Approval or a COLA for short. If you’re already distributing in another state, then you might have (though we hope you haven’t) encountered pushback from Battle Martin, the hardworking Tobacco Tax and Trade Bureau (TTB) employee who handles all of the label approvals (more than 29,500 this year…). With a name as epic as Battle Martin, it’s fitting that The Daily Beast has written a nice sort of tribute to the man. The article also does a good job of pointing out just how persnickety the label-approval process is due to the myriad labeling laws controlling what you can and can’t say on your bottles. If you’re getting close to making an out-of-state push, it’s worth checking out the article to get an idea of what you’re up against. Of course, given how frequently certain label rejections light up social media, you may already be in the know. There are things your labels must say, and there are things they cannot say, and there are a lot of grey areas in between. For example, labels can’t confuse or mislead consumers, and they can’t directly or impliedly tout the effects of drinking your booziest batch of grog. Artwork, too, plays a big role in whether your label stands. You can’t, for example, make Santa look too toasted (see here).

Given how complicated beer-labeling laws are, it’s worth sending a note to your beer attorney before bringing in an artist to work up a design or toiling over a hilarious beer description only to find out you’ll need to make deep revisions to comply with the law. Folks like us at Reiser Legal PLLC are here to help, having battled Battle and made it out on the other side. Feel free to get in touch, and for further reading, check out some of our past posts relating to beer labeling and the COLA process here, here, and here.

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TTB Issues New Rule Exempting Barrel-aged and Specialty Beers from COLA Formula Requirements

We all know that when you’re shipping a beer into interstate commerce, it needs a TTB-approved label (also known as a certificate of label approval or a COLA). This past week, TTB issued Ruling 2014-4 that hands down some good news for a lot of producers throughout the country. In the past, TTB required brewers to take extra steps when seeking labels for brews featuring various fruits, spices, or other food-like ingredients that were nonetheless fairly common in classic brewing. Notably, barrel-aged beers fell into this more burdensome category, requiring that brewers submit formula disclosures to TTB.

Here’s a brief rundown on the new ruling. Those brewing with this list of added ingredients (ranging from honey and maple syrup to a variety of traditionally used fruits and spices), are no longer subject to this extra requirement. And, those aging using traditional processes with liquor or wine barrels, are also no longer subject to the extra requirement. TTB is also okay with tossing wood chips into the fermenter or otherwise using staves or spirals from barrels, without taking any extra formula-disclosure steps. Here’s the important caveat, though, on that. Some smaller breweries who may not wish to invest in a barrel may be borrowing from tried-and-true homebrew methods, soaking oak chips in bourbon, for example. TTB is still concerned about these methods and still requires formula disclosures for brews that come about this way.

So, for those aging in empty barrels or using non-soaked methods, this rule is a plus. But, here’s another important caveat. In the rule, TTB reminds brewers of its advertising regulations. If you’re getting oak flavor from woodchips but not barrels, you can’t suggest the beer is barrel aged. Probably not a problem for most brewers who err on the side of straightforward descriptions, but for those trying to add that “barrel flavor” in a non-traditional way, it’s worth reviewing your marketing and label copy to make sure you’re not getting too close to the line and misleading consumers. TTB specifically says that “lager with whiskey flavors,” “bourbon-flavored lager,” and “Chardonnay lager” would be prohibited as misleading.

We’ve hit on most of the big stuff, but breweries would be well served to review the rule and discuss its nuances with their beer attorneys. In particular, some of TTB’s naming conventions are worth reviewing. If you’re brewing with some of these exempt ingredients, for example, honey, it’s not enough to refer to it on the label as an “ale” or “beer” without modification. TTB would require that you specifically call out the ingredient (“honey ale”) or the category (“fruit ale”) in one of their sanctioned ways. The full text of TTB 2014-4 is available here, and Reiser Legal is available to answer specific questions about these new federal regulations for brewers that might have them.

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Beer Label Leads to Lost Job; IP Concerns for Beer Label Art

Well, this sucks. We all know beards are celebrated in brewing and beyond. See, for example, Rogue’s beard yeast brew. And, recently, Charleston-based Holy City Brewery decided to honor one glorious beard by depicting it on their cans. The beard’s owner was Dr. Paul Roof, a six-year professor at a small christian university in South Carolina, Charleston Southern University. Roof was also founder of the Holy City Beard and Moustache Society that holds annual beard and moustache championships, probably how the Charleston-based brewery discovered Roof’s impressive facial hair. All in all, a seemingly pretty rad situation, but things didn’t turn out that way. Evidently, Roof didn’t learn about the brewery’s plans to use his likeness until the beer cans were already in production. When the cans were released, Roof got a lot of support from people who knew him, including former colleagues and students, but the university didn’t like it one bit. As a result, Roof lost his job.  (We could say he got canned, but, you know, we resisted.)

Putting aside potential contractual issues between Roof and the university, this unfortunate story presents an opportunity to mention another area of law: right of publicity. Right of publicity laws protect an individual from commercial exploitation of their image or likeness, and they apply to celebrities and you and me alike. These laws are enacted or recognized by common law in individual states, so they’re not necessarily applicable everywhere.

Ultimately, the state of South Carolina’s ROP law has important implications for the brewery, as it might give Roof a cause of action against them. Arguably, though, we can imagine that Roof may have consented to the commercial exploitation of his image when he learned of the in-production cans but didn’t do anything to stop the beers from making it out into the public. We aren’t licensed to handle South Carolina state law issues, but it’s all quite interesting to think about.

Thinking outside these facts, though, if your brewery is planning to depict a real-life person on your cans, you’ll want to be clear about the right of publicity laws protecting that individual. Furthermore, even if you have consent from that person, if you’re working up your can or label art from a picture someone took, you’ll also want to make sure you have permission from the photographer. Even if the person or people in the picture consent, you can still run afoul of federal copyright laws by working off of that picture to form your own artwork. And, violations of copyright law can come with stiff consequences. For these sorts of questions and concerns, it’s best to consult with a lawyer knowledgeable about intellectual property rights.

For Dr. Roof, we hope that the publicity he’s getting from this surprising news story leads to some new good work—beard modeling, who knows? And, that also leads us to one last thing. We expect the brewery involved here had awesome intentions when honoring Roof on their cans. Still, assuming they consulted with a lawyer and assuming the lawyer said they didn’t technically need to seek Roof’s permission due to ROP law in that state, it doesn’t mean they couldn’t still ask before starting production. The inner workings of ROP law, copyright law, and all kinds of law aside, we believe that sometimes the best route for business and everyone involved is to adhere to the Golden Rule, which is often more than the bottom line of the law requires you to do.

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