TTB Permits Online for Mac Users: Working Solution

Having TTB upload errors using Microsoft Silverlight on your Mac? Think I may have a solution for you.

  1. If you can, try OSX Yosemite 10.10.4 and Firefox version 39, a combination I am currently successfully using. Later iterations of both may also work, but so far this is all I’ve tested.
  2. See if you can dust off a really old Mac you may have in your electronics graveyard somewhere—preferably with an older version of Silverlight. I was using an ’06 MacBook Pro in connection with a variety of different browsers. I’ll post the versions if I bring it back into service.
  3. Begrudgingly install Windows on your machine using Bootcamp or a third-party option such as Parallels.

Notes/frustrations vented below.

I’ve been on a Mac at home and at work since 2006. Unfortunately, due to TTB compatibility issues with recent Apple OS X versions, most notably (and unsurprisingly) Microsoft Silverlight and Apple OS X errors, I’d actually been using my trusty old ’06 MacBook Pro to upload documents to all of the TTB applications I handle. It’s the only solution I’d found at the time that worked. (Using Bootcamp or Parallels to install Windows on my Mac just seemed sacrilege—and inconvenient!)

In any event, if you don’t submit a lot of TTB applications, you may not notice that TTB’s Brewer’s Notice submission system does not play nice with newer Mac computers. TTB tells you, but quietly. Here’s the only hint, toward the very end of your application, and it’s in small black font just before a big warning for something else grabs your eyes. When you’re in a hustle to get your TTB application from point A to point B, it can be easy to miss, and cause a ton of headaches.

TTB not playing nice with your Mac? Here's the tiny warning about it, within your TTB commodity application.
TTB not playing nice with your Mac? Here’s the tiny warning about it, within your TTB commodity application.

What happens for those of us using anything newer than Leopard? (In other words, those modern users on OS X 10.6 Snow Leopard, 10.7 Lion, 10.8 mountain Lion, 10.9 Mavericks, or 10.10 Yosemite?) In my experience, on my newer machines, is that when you’re using any browser, when you go into the upload document portal, you get taken into a Microsoft Silverlight vortex. You might get prompted to update Silverlight (do so at your own risk). You go upload your important documents, and they appear to upload all the way and show as complete. But, when you click back to the application, there’s nothing there. You might try again, and this time your documents don’t upload all the way, with one or two getting stuck somehow mid-upload. It’s frustrating, to be sure.

However, I’m glad to report a fix that’s working for me right now. In the past, I’ve tried working on every browser imaginable to see if it would work with my current version of Apple OS X. Right now, I’m on OS X Yosemite 10.10.4. And, every now and then, I’ll try it again on my new machine to see if things are compatible, or if I have to bust out my vintage machine. Much to my delight, things seem to be working! You have to skip using Chrome (like about 65% of all of us use). The solution for now is in Firefox (well, at least OSX Yosemite 10.10.4 is working with Firefox version 39).

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Introducing: Washington State Liquor and Cannabis Board!

And just like that the Washington State Liquor Control Board has become the Washington State Liquor and Cannabis Board. Here’s Reiser Legal’s warm welcome to the agency we know and love, under a fresh new moniker. I suppose it’s only fair, given the rise of the cannabis industry—and in this the Evergreen State, at that. Maybe few have noticed and few will ultimately care. But, I like the new name! And, mostly, I’m just glad I can still affectionately think of them as the LCB (because LMB just wouldn’t have that same authoritative ring).

For those wondering when the change happened, it looks like the confetti fell on July 24, 2015, when a number of LCB-related bills went into effect after this last legislative session. Turns out, a section of the Cannabis Patient Protection Act (Senate Bill 5052) which we hadn’t been tracking was what made the change (which, LCB reports, is the first change to the name since the Liquor Control Board was established by the Steele Act back on January 23, 1934).

Here’s a header from their homepage taken just now:

Introducing, the Washington State Liquor and Cannabis Board!
Introducing, the Washington State Liquor and Cannabis Board!

And, here’s an old snap from April or so, thanks to the Wayback Machine:

 

Screen Shot 2015-07-29 at 3.38.27 PM

 

 

 

 

 

Nothing but hard-hitting news here on the Brewery Law Blog!

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Washington Brewers Trademark Dispute

The state of Washington is beautiful; as is the state of Washington beer. It's no less beautiful due to the recent trademark conflict among in-state breweries. But, those launching brands would be well-served to review trademark best practices, and budget for a defensible long-term brand-protection strategy.
The state of Washington is beautiful; as is the state of Washington beer. It’s no less beautiful due to the recent trademark conflict among in-state breweries. But, those launching brands would be well-served to review trademark best practices, and budget for a defensible long-term brand-protection strategy.

Over the weekend, the hard-working Kendall Jones over at the Washington Beer Blog reported on the latest trademark dispute to hit Washington breweries. This time, between them.

The issue?

Three Magnets Brewing Company over in Olympia had called their flagship IPA “Rainy Day IPA.” They got into a scuffle with another Washington brewery, not named in the article, and ended up changing the beer name.

No matter the breweries involved, the lesson is the same in the others we’ve seen. It’s the same for any industry, not just brewing. Before naming a business or investing in the release of branded flagship products—before launching any brand material you’d be bummed to change—the process is the same:

  1. Proactively clear the mark yourself. For the beer industry, that means using Google, Ratebeer, Untappd, Beer Advocate. Basic clearance involves looking for beers, but also wines and spirits. If it’s a brewery name, it involves looking into the names of bars and restaurants out there. Strike ‘em off the list or seek the counsel of a trademark attorney when finding a potential conflict or issue. The visual similarities between the marks matter, as do similarities in sound and in meaning.
  2. After pre-clearing and locating marks that seem potentially clear (or, at least, less fraught with problems), the next steps is to seek a professional trademark clearance report and analysis. Sure, you can search the trademark register yourself as a part of your pre-clearance processes. But, recognize that it’s not just the “hits” that matter; it’s the interpretation of the hits, the status of the marks, and how to interpret the results. It’s also knowing how to conduct the right search in the first place to not miss potentially confusingly similar (not just identical) marks. Getting a professional opinion from a trademark attorney doesn’t have to cost a fortune. And it shouldn’t.
  3. When finding a direction that appears clear, file. Not next week or next month, but immediately. The trademark register moves quickly. Beers are launched every day. Both filings and unregistered releases have implications on your potential trademark rights. You can file an intent-to-use trademark application before you launch products. Before you open the brewery.
  4. Now that you’ve done it right, stay on the lookout. Monitor for potentially conflicting applications and uses.

In closing, I will make one general note, when looking toward the future. Keep in mind that having a pending application or even a registration doesn’t immunize a brewery from potential name issues; despite careful planning, no one can predict how broadly others will construe their brands (See, for example, Red Bull opposing Old Ox Brewing). Even when you’ve done everything right, it can be expensive to maintain rights. Others can infringe, and you may have to stop them. Others may find you infringing and it’s expensive to fight it, even when they have a bad case. That’s an unfortunate reality. But, taking these steps is not just best practice, it’s essential practice for any brewery or beverage business that wants to stake a strong and long-term claim to its branding material. Budget for protection, the same way you’d budget for opening a brewery in the first place or planning for expansion. Get yourself on the register and visible to others looking to protect their brands.

It’s a minimal investment given that properly staked-out rights can potentially belong to the business forever.

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Update on “Slow Ride” Brewery Trademark Dispute

Slow ride, indeed. Here's an explanation of what just happened in the New Belgium and Oasis brewery trademark dispute over rights to Slow Ride.
Slow ride, indeed. Here’s an explanation of what just happened in the New Belgium and Oasis brewery trademark dispute over rights to Slow Ride.

A few months back, we reported on the “Slow Ride” brewery trademark dispute involving New Belgium in Colorado and Oasis in Texas. The gist is, New Belgium filed a lawsuit in Colorado seeking clarification of its geographic rights to “Slow Ride.” Both breweries had a beer by the name, New Belgium had filed for a trademark, but the Texas brewery had sold some beer under the name before New Belgium filed for the trademark. You can review our basic notes on the case here.

Today, we have an update. It’s a bit of a nerdy procedural one, but for any non-J.D. onlookers, it’ll help make sense of what happened. A Colorado judge has dismissed the case (Here’s a link to the judge’s order). The dismissal, though, doesn’t mean the dispute is over. Parties to a lawsuit typically seek to file the lawsuit near their home court, so they don’t have to go prosecute a lawsuit in another state. Here, New Belgium filed in Colorado. Importantly, though, the legal system does not allow a company to sue just anywhere it pleases. There is a requirement that the defendant have a sufficient connection to the state to make holding the lawsuit there just. I’ll note that any law students reading this have just cringed, recalling first year Civil Procedure discussions about what’s known as Personal Jurisdiction. In any event, due process requires that the defendant have sufficient minimum contacts with the forum state such that the maintenance of the suit in that forum does not offend traditional notions of fair play and substantial justice. (Thanks, Professor Cooper.)

A lot of money can be spent about whether there’s personal jurisdiction to support the lawsuit, and that’s what happened here. A judge has not gotten to the merits of the trademark dispute at all. A Colorado judge merely found that Oasis did not have a sufficient enough connection to Colorado to hold the lawsuit there. What kinds of connections did New Belgium allege that Oasis had to Colorado, to support holding the lawsuit there? Attending the Great American Beer Festival in Colorado, and then also sending cease and desist letters to New Belgium in the state. These weren’t enough to make it just to hail an out-of-state brewery into Colorado federal court.

So, where do we stand? No doubt, New Belgium’s filing of the declaratory judgment action was a maneuver to avoid having to deal with a lawsuit in Texas, which would be on Oasis’s home court. Moreover, and most likely, it was also filed to hopefully spur (Texas pun initially unintended) this lawsuit into settlement. Both parties have made public statements that they’re interested in settling. But, it’s a slow ride indeed. We’ll see what happens, and report back when we know more.

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Brewery Copyright Beer Label Woes: A Tale From Canada

What’s the inspiration behind your beer label? Do you know if it’s original?

So many of our brewery clients have rad acquaintances who are graphic designers, eager to get onboard and build out brand material for little cost. Other breweries may not have the personal connections, but recognize the importance of brand material, and make significant investments in outside creative professional services. Both are great routes, and our post last year touched on copyright concerns in structuring even the most informal of those relationships, to make sure copyright ownership flowed fully to the brewery. Today, I’ll renew our discussion, highlighting another important point. This one is unfortunately inspired by headlines involving our friends up there in Canada, and it emphasizes again how important it is to get a strong creative services agreement in place whenever you’re engaging outside help.

This is the original label design Canada’s Central City Brewing had adopted for it saison, before getting word of a potential copyright infringement claim.

Take a look at these two images. One is a beer label, the other an excerpt from a comic book. Eerie similarities, right? It turns out that Canada’s Central City Brewing hired an agency to create a beer label for its saison. The day before its release, the brewery proudly posted its rocking label art on its Twitter account.

This is artwork from the Powers comic book series, depicting character Deena Pilgrim. I think we can all agree that artist who made the beer label did not independently arrive at the design.
This is artwork from the Powers comic book series, depicting character Deena Pilgrim. I think we can all agree that artist who made the beer label did not independently arrive at the design.

Literally hours before the beer was due to be in stores, Twitter fans pointed out the infringement issue with the character Deena Pilgrim from the comic book series Powers. It seems the brewery had no idea, and thought it was getting a cool piece of original artwork.

So, what happened? The brewery had to put the release on hold and paste 24,000 new labels by hand onto its bottles. Below is an image of the new beer label. (Sidebar: Bear in mind that ideas are not protected by copyright law, but expression is. The concept of a foxy detective wielding her badge isn’t infringement, but as you drill down into specific choices—the placement of fingers on the badge, the style of the hair, the facial expression, the angle of the stance, the decisions involving light and shadows—that’s when you cross the line from idea over into expression. That’s when you run into problems.) Ultimately, this is a frustrating outlay of cash. And, although we’d like to think it was avoidable on the part of the ad agency, I’d like to think it’s easily reimbursable based on the agreement in place between the companies.

Here's the design that Central City ended up landing on for their Detective Saison. It may still have the same idea behind it, but the expression is what matters here.
Here’s the design that Central City ended up landing on for their Detective Saison. It may still have the same idea behind it, but the expression is what matters here.

So, how do you avoid this sort of issue? First, it’s important to get an agreement with your designer in writing that not only vests ownership in the brewery, but one that also is designed to address situations like this. That’s what a contract does, it sorts out who is liable for what, in the event all sorts of things go wrong with the relationship. This is the sort of thing that could foreseeable go wrong with a creative services relationship. We don’t know what was in the agreement here. But, it’s important to note that it was a professional agency that turned out the problematic work. Do you know where the design direction for your logos came from? Do you know what works were used as inspiration? It’s important to note that even the most talented of designers may not be familiar with the nuances of trademark and copyright, which are often confused in the media. In evaluating trademarks, a comparison of the goods/services in question comes into play. A badge-wielding agent could be used in connection with computer speakers and a brand of beer, and consumers probably wouldn’t be confused. But, when it comes to copyright, protectable elements of a work are afforded strong rights, even and especially when they’re used in different media and on different goods and services.

Best practice is to be proactive and get a copyright agreement in place. On the flipside, best practice is also to copyright your own works as soon as they’re created. No one wants to be the one slapping new labels on through the night, with doubt in your mind about just how easily you’ll get this expense covered. Beyond that, no one wants to be the company whose valuable brand material just got infringed upon. Taking both steps help best protect your brewing business, no matter how the dice roll.

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