What You Should Know About Trademark Laws
A lot goes into developing a new adult beverage product. Market research, name development, formulation of recipes, and branding. Together they work to identify yourself in a crowded market. At Brindiamo Group, we understand the importance of wanting to keep these ideas protected. While we aren’t here to give legal advice, there is some general information about trademark law that could be helpful. This blog is designed to take a conservative view on the role of trademark law and how it can affect your beverage business. If you find yourself in a situation where advice is needed, please contact a trademark attorney.
What is a Trademark?
To start, a trademark is a symbol that identifies a "single source" of goods. That's important to know. It means you can't trademark something general. An example of this would include "craft bourbon" It also means you can't trademark a description such as "great tasting craft bourbon." A company that creates many spirits, beers, or wines can trademark that individual product. A good example here would be "Jim Beam Signature Craft Bourbon."
Trademarks and Branding
Getting a trademark for your name is possible when it includes a general, descriptive term. If we refer back to the previous example, from Jim Beam, the name had “craft bourbon.” How are consumers able to identify their version of craft bourbon from a competitor? Trademarking will align the product to your business and improve brand awareness.
Information on the Trade Dress
When you trademark, you can include specialties like your branding. It could take on any shape or form, but the key here is that it is unique to you. Examples in the past have included labels, bottles, and packaging. One company learned the hard way just how effective the trade dress was when it produced a package similar to Maker's Mark and their dripping wax seal. A lawsuit was filed and Maker’s Mark successfully defended their branding. If you want to protect your branding the same way, you can contact a trademark attorney for more information.
Registering Trademark and Trade Dress
Most countries require you to register with the regional trademark office. These countries will let you use the trademark without registration, but it means you forgo your right to sue in the event of infringement. Those rules even extend to someone who has copied your work down to the letter. The ultimate protection would require registration.
In the United States, it's a little different. You just have to apply the trademark for protection. No registration required. There is something you should be aware of, and that's "use-based rights." Also known as the Lanham Act. Products that are only sold in limited areas are protected just in the areas that they are sold. That means if you only sell to counties in Tennessee, your trademark rights don't extend to someone who uses them in New York.
A workaround includes registering it with the United States Patent and Trademark Office (USPTO). You can apply online. If approved, it gives you national rights from the date the application was filed.
Is Your Business and Website Protected Under Trademark Law?
Your business name and website do not fall under trademark law. There are some circumstances where your name that has been trademarked and copied can file a lawsuit. Copyright laws can protect you in some cases. A label design that has been duplicated could fall under both the copyright laws and trademark if the label were enough of a brand identifier. A trademark attorney will have more information on how these will work for your particular case.
What You Can do if Someone is Using Your Mark
Essentially, trademark law protects customer confusion and protection would include a possible lawsuit. Once a wine company decided to give one of their products the same name as an absinthe company. The absinthe had already been registered, and the wine was denied an application. The winery moved forward with using the name anyways, and the absinthe company decided to file a lawsuit. First, the consumers who saw the wine on the shelf might confuse it with the distillery that makes the absinthe. Second, the winery promoted their product heavily on social media which could further confuse consumers into thinking the absinthe was a part of the winery. The winery lost the suit because they failed to do their research before establishing the name and branding.
Getting an International Trademark
It's important to note that trademarks are established per region. Companies interested in international distribution should take into consideration the registration of the trademark in each country. The European Union has a dedicated team to oversee all trademarks. But, you still need to do your own research to confirm availability in each country.
Issues with Getting Your Mark Registered
Problems with getting your mark registered should be handled by a professional. Creative lawyers exist to help individuals and businesses find success with the USPTO. Sometimes they can convince the organization of the uniqueness of your branding to allow the registration to go through.
Branding is very much a part of your identity and will help you establish a strong consumer base. Working with a trademark attorney can get you on track for registration with the USPTO.
For more information about branding your spirit, wine, or beer contact the Brindiamo Group.
Gould, Stephen and Reidl, Paul W. “Protecting Your Brands Through Trademark Law.” Distiller. Summer 2015: 62-65. Print.