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Anchor Brewing Co. has filed an opposition against D.G. Yuengling & Son Inc.'s application to register "James River Steam Brewery" as a trademark, arguing that the proposed mark will confuse consumers familiar with its product Anchor Steam. Anchor Brewing Co. v. D.G. Yuengling & Son Inc., No. 91247967 (U.S.P.T.O., opposition filed May 3, 2019). Anchor asserts that it owns the rights to use "Steam Beer," which describes "an indigenous style of beer known as California common beer." The use of "James River Steam Brewery," Anchor argues, "is likely to create the false impression that Applicant's goods are provided by, related to, endorsed by, or associated with Opposer."

The U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB) has issued an industry circular stating that it "will return for correction any applications for formulas containing 'hemp' ingredients (other than ingredients derived from hemp seeds or hemp seed oil)" until the U.S. Food and Drug Administration (FDA) indicates that the ingredients' use would not violate the Federal Food, Drug, and Cosmetic Act. The circular, addressed to wineries, breweries, distilleries and importers, states that TTB consults with FDA on ingredients' safety and notes that, despite the change in the definition for "marijuana" in the 2018 Farm Bill, "FDA stressed that food companies that wish to use cannabis or cannabis-derived ingredients in their foods are subject to the relevant laws and regulations that govern all food products, including those that relate to the requirements for food additive approval and substantiation of evidence for Generally Recognized as Safe (GRAS) status."

A consumer has filed a putative class action alleging that O Organics and Lucerne Foods Inc. "greatly understate" the alcohol and sugar content of their kombucha. Freedline v. O Organics LLC, No. 19-1945 (N.D. Cal., filed April 10, 2019). The plaintiff argues that "the beverages contain more than three to five times the alcohol allowed for non-alcoholic beverages" and "are sold to unsuspecting children, pregnant women, persons suffering with alcohol dependence issues, and a host of other people for whom alcohol consumption may pose a grave and immediate safety risk." The complaint cites lab testing purportedly showing levels of alcohol by volume between 1.63 and 2.63 percent. The plaintiff alleges violations of California's consumer-protection statutes as well as breach of warranties, fraud, unjust enrichment and negligent misrepresentation, and he seeks class certification, damages, restitution and attorney's fees.

Two California courts have dismissed lawsuits brought by a competitor alleging kombucha companies misrepresented the amount of sugar and alcohol in their products. Tortilla Factory LLC v. Rowdy Mermaid Kombucha LLC, No. 18-2984 (C.D. Cal., entered September 11, 2018); Tortilla Factory LLC v. Better Booch LLC, No. 18-2980 (C.D. Cal., entered September 13, 2018). In April 2018, Tortilla Factory filed several lawsuits alleging that a number of its competitors, including Rowdy Mermaid Kombucha and Better Booch, misrepresent the alcohol and sugar content in their beverages in violation of federal law. The court in Rowdy Mermaid found that Tortilla Factory did not suffer an injury from Rowdy Mermaid's conduct; while the plaintiff argued that the companies are "vying for the same dollars from the same consumers," it failed to argue that "the two companies' products are sold in the same stores, through the same channels, or even in the same geographic…

In-N-Out Burger has reportedly warned brewery Seven Stills that its forthcoming In-N-Stout beer violates the company’s trademarks and trade dress. Seven Stills promoted the beer, a “Neapolitan milkshake stout,” on its social media with a photo of a can featuring red lettering and a yellow arrow similar to In-N-Out’s logo. The brewery also posted a photo of the cease-and-desist letter, encouraging viewers to “find the puns.” “Please understand that use of our marks by third parties ales us to the extent that this could cause confusion in the marketplace or prevent us from protecting our marks in the future,” the letter states. “We hope you appreciate, however, that we are attempting to clearly distill our rights by crafting an amicable approach with you, rather than barrel through this. … Please contact us as soon as possible, so this does not continue to ferment. Thank you for your time and consideration,…

The Trademark Trial and Appeal Board (TTAB) has dismissed The Wonderful Co.'s opposition to Comrade Brewing Co.'s application to register "Superpower" as a mark used in relation to beer. Wonderful Co. v. Comrade Brewing Co., No. 91230877 (T.T.A.B., entered August 2, 2018). The Wonderful Co. uses its mark "Antioxidant Superpower" to describe its POM pomegranate juice, which it alleged will be sold in the same aisle as beer in some stores. TTAB was unpersuaded, finding that consumers are not likely to view fruit juices and beer as produced by a common source under one brand's mark. TTAB also found the term "antioxidant superpower" to be "somewhat suggestive of the identified goods, and thus conceptually is somewhat weaker than an arbitrary mark."

A Nevada federal court has dismissed JL Beverage Co.’s trademark-infringement allegations against Beam Inc.’s Pucker Vodka. JL Beverage Co. v. Beam Inc., No. 11-0417 (D. Nev., entered July 23, 2018). The 2011 complaint, which alleged that Beam Inc.’s mark featuring a drawing of lips infringed on JL Beverage’s lip-imprint mark, was revived by the Ninth Circuit in 2016. In addition to arguing against the alleged infringement, Beam Inc. filed a counterclaim asserting that JL Beverage’s trademark should be canceled. The court was unpersuaded by JL Beverage’s arguments about consumer associations with the lip illustration. “Consumers do not refer to Johnny Love Vodka as ‘the lip vodka,’” the court noted. “JL Beverage offered evidence at trial that consumers refer to Johnny Love Vodka as ‘the lip vodka,’ but the Court did not find this evidence credible.” Further, “Consumers exposed to JL Beverage’s logo and marketing materials during the sponsorship events probably…

The Canadian Food Inspection Agency has proposed changes to its compositional standards of beer, ale, stout, porter and malt liquor "to allow for innovation within the beer category while still preserving product integrity and to better reflect the tastes and needs of consumers." The proposed amendments would update the definition of beer to allow the use of microorganisms beyond yeast in the fermentation starter culture and remove the requirement that the final product "possess the aroma, taste and character commonly attributed to beer." In addition, herbs and spices would be permitted for use in product formulation, and beer would be limited to no more than 4 percent by weight of residual sugars to distinguish beer from malt-based beverages. Comments on the proposed changes will be accepted until September 14, 2018.

The U.S. Court of Appeals for the Sixth Circuit has affirmed summary judgment in favor of Peristyle LLC, finding that its use of the term "Old Taylor" falls under the Lanham Act's fair use defense. Sazerac Brands, LLC, v. Peristyle, LLC, No. 17-5933/5997 (6th Cir., entered June 14, 2018). The "Old Taylor" mark references Colonel Edmund H. Taylor, Jr., who built the Old Taylor distillery in 1887, and although production at the facility ceased in 1972, Sazerac Brands owns the trademark rights to "Old Taylor" and "Colonel E.H. Taylor." Peristyle was formed to renovate the medieval castle-style building, listed on the National Register of Historic Places as the "Old Taylor Distillery." Although Peristyle has not resumed bourbon production at the facility, it has used the name "Old Taylor Distillery" in its marketing materials. Noting that a defendant seeking shelter under the fair use defense must show use of the mark…

The Court of Justice of the European Union (CJEU) has held that the name of German whisky Glen Buchenbach may mislead consumers into believing the product is manufactured in Scotland. Scotch Whisky Assoc. v. Klotz, No, C-44/17 (CJEU, entered June 7, 2018). CJEU clarified EU law on registered geographical indications, holding that an "indirect commercial use" can occur if the product at issue includes an element either identical or phonetically and visually similar to the registered indication but does not occur if the "element is liable to evoke in the relevant public some kind of association with the indication concerned or the geographical area relating thereto." CJEU remanded the case to German court for a final determination, which may consider a magistrate's preliminary finding that "'glen' does not have a sufficiently clear and direct link with the protected geographical indication in question."

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