Is Your Trademarkable Beer Name Distributable?

This beer label was rejected by TTB due to the imagery, as TTB deemed it to appeal to kids.
This beer label was rejected by TTB due to the imagery, as TTB deemed it to appeal to kids. (Speaking of kids, Happy Halloween!)

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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Part 3 of 3: Why Beer Labels Usually Don’t Need (But Can Include) ABV and Nutrient Content Information

Over the last couple of days, we’ve been talking about beer labels—why they don’t always have to include information like ABV, serving size, calorie content, and the like, and also explaining why and how you can still legally volunteer this sort of information. If you’ve missed Parts 1 and 2 of this 3-part series, take a sec and get up to speed. When you’re ready, cruise along to today’s final part down below, where we share our thoughts about why, even though you totally can include this kind of information on your labels, you might think twice before you do.

Part 3. Volunteering Information. Even Though You Can, You Might Not Want to Do It.

TTBNow you know that if you want to include extra information on your beer labels like ABV and nutrition facts, TTB won’t get in your way—and if you do it in certain pre-approved ways, you won’t even have to get another COLA. It’s worth noting, though, that just because you can disclose this kind of information, you’ll want to carefully think about whether or not you ultimately do. Along with issuing its ruling approving the practice, TTB cautioned that this sort of voluntary information has to be “[t]ruthful, accurate, and specific.” Actually, though, this requirement of accuracy in “extra” disclosure has pretty much been the case since 1995, where the United States Supreme Court let us know that the First Amendment protected truthful, verifiable numerical statements about alcohol content. Chalk that Supreme Court case and its reasoning up to the dweeb-worthy category again, but it’s worth lingering on for just a second.

We’ve all often heard the saying along the lines of”it’s better to beg for forgiveness than to ask for permission,” but here, that old wisdom doesn’t really apply. Because TTB has given you carefully controlled permission, before you decide to stick ABV or other specific information on your beer labels, you’ll want to make sure that the number you land on is absolutely truthful and verifiable. We don’t know any intentionally dishonest brewers, but it stands to mention that even if you’ve brewed a few test batches and your numbers have been spot on, it would serve you well, and keep you within the law, to double-check these sorts of things before you revise your COLA. And, keep in mind, if your brews fluctuate from batch to batch, you’ll want to make sure your current label is always compliant, to keep you solid under the law. Even though you don’t have to get a new COLA to add this information to your existing labeled brews, the question remains open whether you can make midstream changes to update this sort of information once you disclose it on an existing COLA, or whether you need to get a completely new label approval from TTB.

We’re all for putting out useful information to consumers, and definitely understand why brewers might want to get this info in front of would-be buyers facing a fully stocked shelf of goodness. So, if you’re sure, go for it. Still, even though the beer label has its merits as a tool for communication, given the penalties you can get hit with for falling out of line, we find that some of that voluntary information just might be better left to places TTB and FDA don’t hold a stick, such as the taproom, Untappd, and the like. Technically, though, TTB’s reach (and, thus, its accuracy requirement) extends to all the places you advertise your beers. However, it’s far easier and definitely more cost effective to update your website or chalkboard with batch-to-batch information, versus applying for a new COLA. As we mentioned yesterday, mandatory label disclosure of this sort of information might be coming down the pike soon, but we’re not there yet (and, cheers to that!).

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Part 1 of 3: Why Beer Labels Usually Don’t Need (But Can Include) ABV and Nutrient Content Information

BeerLabels
Beer labels!

Beer labels. They definitely can be an artist’s canvas, but more often than not, they’re a prime example of federal regulatory oversight in overdrive. For those brewers who are already shipping across state lines, or thinking about it, you know you need to get a “Certificate of Label Approval” (COLA, for short) to legally do so. These come from the Alcohol and Tobacco Tax and Trade Bureau (TTB), and every beer you see in interstate commerce must have a TTB-approved label. You might recall now, though, that not every beer you see on the shelves contains ABV or Serving Fact information, but some of them do. Over the next couple of days, we’ll walk through what the deal with that is, and dispel common confusion about whether or not you must, or should, include this kind of information on your labels.

Part 1: History & Jurisdiction. TTB is not the FDA, and for brewers, that’s a good thing.

The reason beer labels typically don’t have to include that black-and-white box you see on everyday food products is because just about all beer is regulated by TTB, and not the Food and Drug Administration (FDA). FDA and consumers have actually tried, really hard, to get control over the labeling of alcoholic beverages, but TTB (formerly the Bureau of Alcohol, Tobacco, and Firearms, how’s that for tough?) has been able to hold them off because of a piece of legislation that’s been on the books since 1935 called the Federal Alcohol Administration Act. Beverage history dweebs like us could fill a college syllabus with the background of that Act and its tension with FDA authority. But, suffice it to say that it gives TTB primary control over certain alcoholic beverages, including beer.

We say “primary control,” because the division of labor between TTB and FDA is not as neat as it could be. For example, when you seek a COLA, you have to disclose the ingredients in the beer, and FDA is technically charged with reviewing those to make sure the beer is safe. (For a good example of this oversight in action, recall the Four Loko adventures of alcohol + caffeine, where on-the-market malt beverages were ultimately banned and considered “adulterated” by FDA, even though they had successfully obtained label approval from TTB.)

If you only remember one thing from this series of posts, it’s that in order for your beer to fall under that Federal Alcohol Administration Act (FAA Act), putting it within TTB’s authority, you have to make sure your beer includes two ingredients: malted barley and hops. That’s because the FAA Act, back in 1935, decided that unless an alcoholic beverage contained malted barley and hops, it just wasn’t a malted beverage—sort of like a mini Reinheitsgebot. Thus, if there’s no hops or malted barley in the beverage, then TTB isn’t in charge, you don’t need a COLA, and you’d be regulated by FDA as a standard food/drink item.

For most brewers, falling under TTB jurisdiction is no problem. But, for anyone considering diving into the gluten-free market and mashing exclusively with stuff like rice or sorghum, you need to know that you’re regulated by FDA. This means that, for those beers, you’re required to comply with all of FDA’s labeling standards, and it’s why you’ll see (or should!) Nutrition Facts sections on non-barley-based beers, such as the Raspberry Ale from Colorado’s New Planet.

Tomorrow, we’ll introduce part two of this series, answering a question we often receive. That is, even if you fall under TTB authority because you use malted barley and hops, whether you are still legally allowed to include other information like an ingredients list, nutritional breakdown, calorie information, and alcohol content—and, if so, (1) what sort of format you’re allowed to display it in (for example, alcohol by volume, alcohol by weight?) and (2) the sorts of tests you’d need to back any of this information up. We’ll see you then.

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The TTB Modernizes? Shelton Brothers Push The F’ing Envelope

TO OL + Shelton Brothers - Modernizing the TTB?
TO OL + Shelton Brothers – Modernizing the TTB?

First of all, big thanks to my favorite beverage law blog – BevLog – for bringing this to my attention. It appears that the often fearless Daniel Shelton, of famed beverage importer Shelton Brothers, has decided that the “queen mother of dirty words” (thanks Ralph) no longer meets the definition of “obscene or indecent.” Because if that “F – – -” word was, the TTB certainly would not approve of it.

Thanks to Danish brewer To Ol and Shelton Brothers, we are getting a sneak peak at the TTB’s new line of thinking. I am virtually certain that the TTB didn’t simply miss that word in its review – because the same word appears in 4 different submissions for the same brewery.

Well then, its the 21st Century. Go with it, eh?

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New COLA Form Showcases Vast List of Allowable Revisions

 

The TTB finally decided to cut give a bit on label revisions. Thank goodness.

The TTB has decided to throw a bone to all of us who have to navigate through COLA submissions. It’s a very big bone.

 

For years, people have clamored for more freedom in the COLA submission process, and finally they are going to give it to us. The TTB commented that over 146,000 label submissions were submitted last year (10% raise) and that it has finally become too daunting a task to manually review each one. With resources becoming scarce there is one solution – limit the application requirement with more allowable revisions.

 

The TTB has implemented Form 5100.31, the newest version of the Application for Certification/Exemption of Label/Bottle Approval. The new form comes with an incredibly expansive list of Allowable Revisions, which is a term of art for those label changes that do not require resubmission to the TTB for approval.  The list of Allowable Revisions (in a neatly crafted chart with some great examples) can be found here at the TTB website.

 

If the TTB chart doesn’t help, please check out the wonderful post published by the wonderful people at Ship Compliant, who have kindly highlighted the changes in the new form. Want more help? The legal team at BevLog have put together a nice description of “ARTAL” (an acronym standing for Allowable Revisions to Approved Labels”).

 

So, if you want to make changes to that age old label but didn’t want to go through another COLA process – it is time to rethink that strategy and get to updating that art.

 

 

 

 

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