Wine Spectator article on October 8, 2015 notes that "the main counterfeiters are importers, distributors and subdistributors" and that counterfeit wines are "generally a very high quality, which makes it very difficult to tell the real from the fake." The report also notes the rise of "brand squatting--acquiring the Chinese rights to a foreign wine's name" an all-to-familiar occurrence for some of our clients. A recent attempt to trademark all of the Greek grape variety names showcases that "no brand or region or grape is safe." Hopefully, recent changes to Chinese trademark law will help minimize brand squatting in China.
Great article by Fish & Richardson PC for the IP Section of the California State Bar on September 18, 2015 addressing situations where it behooves brand owners to not only seek trademark registration but also copyright registration. The most notable advantages to seeking copyright protection of a design mark include a less stringent test to find infringement (likelihood of confusion v. substantial similarity), statutory damages awards and attorneys' fees, as well as heightened protection against grey-market goods and protection abroad.
This September 4, 2015 National Law Review article and USPTO announcement provide a detailed summary of a pilot program announced on September 1st by the USPTO that would allow amendments to goods and services in trademark registrations where necessary because of evolving technology. This allows a trademark owner to preserve a registration where technology has evolved in such a way that the registrant can no longer use the mark in its original form but the underlying content or subject matter remains the same. Examples include amendments from "floppy discs for computers for word processing" to "online non-downloadable software for word processing"; "printed books in the field of art history" to "downloadable electronic books in the field of art history; "telephone banking services" to "electronic banking services."
A hijacked mark in China is an all-to common event. This July 7, 2015 article from IPPro The Internet summarizes two recent cases with diametric results: Michael Jordan failed to invalidate a Chinese trademark using a transliteration of his name while Michael Bastian successfully invalidated a trademark squatter's registration of his name and Chinese transliteration. The disparate results rely on the fact that Bastian was able to prove the hijacker's bad faith based on the hijacker's ownership of 120 trademark registrations with no business related to these marks. Interestingly, Bastian was not able to prove prior use, but the Chinese appellate board still found sufficient bad faith.
The Napa Valley Register reports on July 27, 2015 that wine exports from Napa have doubled in ten years, totaling $343 million dollars' worth of good exported in 2014. Nearly 70% was likely wine. The article also notes that 90% of US wine exports come from Napa.
A report summarized by Rupart Millar on May 7th for the Drinks Business shows that the craft beer industry contributed $6.5 billion to the California economy in 2014 and that California produces the most craft beer in the US. Interesting conversion of pints per person: if you split craft beer production by the population of California, it's only 13 pints per person (versus 100 pints per person Oregon if you split its barrel production by population).
Vince Winkel of the Daily Camera reports on May 1, 2015 that winery Ste. Michelle Wine Estates has sued Twisted Pine Brewing Company for trademark infringement over its use of Northstar Imperial Porter based on its Northstar wine brand. A copy of the federal complaint is available here. Although unlikely to go to trial, this is a good example of the increase in litigation between breweries and wineries. Do you think a consumer is likely to be confused between Northstar Imperial Porter and Northstar wine?
Tribune News Services' June 5, 2015 article brings to light the importance of timing in trademark application and that constant tension between dates of first use and application filing dates. Anheuser-Busch tried to phrase "Brewed the Hard Way" as used on Superbowl ad but Martin City Brewing filed a trademark application for Hard Way IPA the day before. Anhesuer-Busch states that "Budweiser had been 'brewed the hard way since 1876.' Anheuser-Busch's application is currently suspended and the brewery's application was approved for publication, thus subject to public opposition. It will be interesting to see where this ends up.
As is evidenced on Michael Jordan's recent loss in an appellate trademark court in China, protecting one's brand in China -- even one as distinct and presumably invulnerable as the name brand "Michael Jordan" -- takes careful planning and a distinct strategy. This article by our foreign counsel Deanna Wong on June 2nd for Bloomberg news showcases the different strategies implemented by Michael Jordan and Allen Iverson, and different results.
Wine Mag's 2014 Report Card shows some interesting trends in the wine and spirits industries, including that women have for the first time outnumbered men in overall consumption and that craft beer consumption has increased by 15 percent.
Forbes' February 16th article on global wine consumption and production states that, although France was the world's biggest wine producer in 2014, its market share of the global wine production is slipping and that "[i]f the current trends continue (based on 2000-2012[,] Europe will no longer be the world's biggest wine producer by 2030." Meanwhile, the percentage of wine exports throughout the world is rapidly increasing: "[t]oday, some 40% of all wine is exported, i.e. consumed in another country than where it was produced. This is a dramatic increase from the early 2000s when only 25% was exported."
In the wine industry, the use of surnames as brand names is ubiquitous. This National Law Review article on March 18, 2015 discusses the challenges of seeking trademark protection for personal names, noting that "as trademark law has evolved, so has the view that everyone has a 'right' to use their own name as a mark. The modern view focuses on protecting the public from confusion, such that a subsequent user may face limits to using their own name if it would be likely to cause confusion with an existing mark" and citing a court ruling that "[a] person has no right to use his name as a trademark simply because of the fortuity of his parents and their choice of names. The world is full of people who cannot use their names in whole industries: Marriotts in motels, Hugheses in oil tools, and McDonalds in fast foods."
This JD Supra article on March 4, 2015 highlights the importance for US brand owners to file trademark applications in Cuba to protect their brands as US policy shifts in Cuba and the Cuban market opens to US goods and services. Specifically, it notes that Cuba is a "first-to-file" system (the first party to file a trademark application will be deemed the owner of the trademark) and that US regulations permit trademark registration in Cuba. Therefore, "now that the prospects [of trading in Cuba] are rising, so is interest in owners registering their marks [in Cuba], and so, too, the interest in pirates exploiting their opportunities."
People always ask, can you trademark song lyrics? Here is a nice synopsis by the University of Pennsylvania's Knowledge @ Wharton on Taylor Swift's attempts to trademark her own lyrics and the "propertization" of lyrics.
Various end of year reports highlight the steady growth in the wine industry, whether in consumption, production or shipment. Silicon Valley Bank's 2015 Wine Report is always a good resource for trends, predictions and overview of the state of the wine industry. Notably, the report states that "In 2014, we predicted sales growth of 6–10 percent and expect to end in the upper end of that range, if not a percentage point or two above it" and "2015 looks like a breakout year."
Likewise, ShipCompliant's annual report, according to The North Bay Business Journal, notes that "U.S. wineries, led by those in Napa and Sonoma counties, last year shipped the equivalent of 3.95 million 9-liter cases to consumers, taking in $1.82 billion . . . That’s up 13.6 percent by volume and 15.5 percent by value, and the most expensive wines had the most growth. The average price of a bottle shipped rose 1.6 percent to $38.40."
Wines & Vines 2015 Directory & Buyer's Guide also notes an increase in the number of US wineries and that "U.S. wineries grew in case production by 5.6%."
This trademark blog post by David Kluft at Foley & Hoag provides a good overview of 2014 legal proceedings involving the beer, wine and spirits industries. Some interesting cases involving foreign equivalents, descriptive goods, counterfeit wine, trade dress, double entendres and, of course, likelihood of confusion.
Gallo published its first wine trends survey, entitled Top 10 Snapshots of the American Wine Consumer. Good graphics and numbers, including that "2/3 of wine drinkers selected a wine for its label, particularly younger wine drinkers. However, 76% of wine drinkers declare that exceptional taste is ultimately what keeps them coming back for more." Not surprising, although the following stat is: 46% of "younger" wine drinkers drink wine over ice?!
Reading the USPTO's statistics regarding its trademark and opposition proceedings filed each quarter may not be a page-turner but it does provide some interesting insight on a few trends: in 2014, trademark oppositions filed with the Trademark Trial and Appeal Board (TTAB) increased by 4.4 percent (5,509 filed) from 2013 and trademark cancellations filed increased by 13.8 percent (1,722 filed) from 2013. While the TTAB's total case load decreased (i.e. the number of cases decided in 2014 decreased by 20.6%), its productivity increased insofar as the average total pendency of cases that proceeded to trial was reduced to 165 weeks (from 189 weeks in 2013). This may seem high but is partly due to the fact that cases often suspended due to discovery or settlement negotiations. The average appeal from commencement to completion is approximately 43 weeks. In short, all these numbers reveal that trademark owners are increasingly defending and protecting their valuable trademarks.
This January 9, 2015 Forbes article on the Psychology of Wine Labels notes that "bottles typically look $10 more expensive than they actually are" and that "the brain's pleasure centers are more active when people think they are drinking $90 wine than $5 wine, even if the two are really identical."
This November 16, 2014 article in the Press Democrat highlights the importance of the concept that “Wine is the ultimate product of place.” Also a good overview on US-EU wine sales, noting that the EU "produces 60 percent of the world’s wine" and the US "is the second-largest region with about 10 percent of global production, with California making about 85 percent of the American output."