Several Louisville, Kentucky, residents and a business owner have filed a putative class action against Diageo Americas Supply, Inc., alleging that one of its distilling operations has caused an accumulation of “the fungus Baudoinia compniacensis, colloquially referred to as ‘whiskey fungus,’” on their real and personal property. Merrick v. Diageo Americas Supply, Inc., No. 12-334 (W.D. Ky., filed Jun 15, 2012). They allege that the ethanol emissions which occur during the “aging/ warehousing stage of alcoholic beverage production” catalyze and promote the growth of whiskey fungus, a black, sooty substance that purportedly accumulates on metal, vinyl, concrete, and wood and requires “extreme cleaning measures such as a high-pressure washing or the application of caustic chemicals such as chlorine bleach.” These measures allegedly “cause early weathering of surfaces affected by the fungus,” such as gutters, siding, roofing, fencing, and vehicles. Seeking to certify a class of all persons and entities owning or…
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According to news sources, Philippine Department of Justice Secretary Leila de Lima issued an opinion in May 2012, upholding a Department of Health (DOH) memorandum that prohibited multinational companies that make infant milk and other nutritional products from using registered trademarks that contain health and nutrition claims which may undermine breastfeeding and breast milk. The companies were not prohibited from selling or advertising their products as long as their marketing materials, including product labels, comply with DOH rules. DOH apparently took the action on the basis of data showing that the country has a weak breastfeeding culture. In issuing her ruling, de Lima rejected the companies’ contention that preventing a trademark owner from the right to use its own registered mark on its products constituted a deprivation of property without due process of law. She reportedly said, “deceptive marks and misdescriptive marks are absolutely unregistrable.” See Business Mirror, June 13,…
After the Idaho State Liquor Division director was informed that a Utah-based distillery was considering suing the agency and state for refusing to allow the sale of Five Wives Vodka® in Idaho, the agency apparently decided that the product will now be allowed on state liquor store shelves and in bars. Discussing Idaho’s initial rejection of the distillery’s application, Director Jeff Anderson reportedly acknowledged that “people of the LDS faith” would not likely be shopping in liquor stores; still, he was quoted as saying, “that does not mean that we are not sensitive to them.” Jonathan Turley, a George Washington University Law School public-interest law professor, had informed Anderson of the distillery’s intent to sue the agency and the state if the director (i) refused to reverse his rejection of bar requests for Five Wives Vodka® special orders, and (ii) based a refusal to include the product on the state’s…
The Sixth Circuit Court of Appeals has determined that the red dripping wax seal that Maker’s Mark Distillery has registered as a trade dress element used on its Kentucky bourbon bottles is protected under trademark law due to its strength and distinctiveness in the marketplace, thus upholding a lower court ruling that Jose Cuervo infringed the mark by using a similar element on its tequila bottles. Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., Nos. 10-5508/5586/5819 (6th Cir., decided May 9, 2012). With the apparent care of a connoisseur, the opinion’s author opens with a detailed history, part legend, of the birth of bourbon and explains how Maker’s Mark came to use the red dripping wax seal on its bottles. According to the court, the evidence fully supported the district court’s evaluation of the strength of the mark and its balancing of the factors regarding consumer confusion over Jose Cuervo’s…
The Johns Hopkins Bloomberg School of Public Health’s Center on Alcohol Marketing and Youth (CAMY) has issued a May 1, 2012, report claiming that the majority of states have failed to adequately address youth exposure to alcohol advertising. According to a concurrent press release, CAMY researchers apparently reviewed state advertising laws to determine whether each law incorporated all, some or none of eight “best practices” designed to limit alcohol advertising that is likely to be viewed by children and underage youth. Their results purportedly revealed that no state successfully applied more than five of the eight recommended policies and only 11 states used more than one. In particular, CAMY has urged states looking to reduce youth exposure to alcohol marketing to (i) “prohibit false or misleading advertising;” (ii) “prohibit alcohol advertising that targets minors”; (iii) “establish jurisdiction over in-state electronic media (TV and radio)”; (iv) “restrict outdoor alcohol advertising in…
The Alcohol and Tobacco Tax and Trade Bureau (TTB) has issued a proposed rule that would amend the standards of identity for distilled spirits to include Cachaça as a type within the class designation for rum. Responding to two petitions from the Brazilian Embassy, TTB has concluded that it is appropriate to recognize Cachaça, which derives from cane sugar, “as a distinctive product of Brazil” provided it is manufactured “in compliance with the laws of Brazil regulating the manufacture of Cachaça for consumption in that country.” The proposed rule would apparently allow the distilled spirit to be marketed as “Cachaça” without the term “rum” on the label, “just as a product labeled with the type designation of ‘Cognac’ is not required to also bear the class designation ‘brandy.’” In keeping with Brazilian regulations, TTB would also refuse the Cachaça designation to distilled spirits that use any corn or corn syrup…
The Mexican owner of U.S. and Mexican trademarks for an “automatic pistol-shaped bottle design . . . used in connection with alcoholic beverages, with the exception of beers” and its exclusive U.S. distributor have filed trademark infringement claims against the company that sells, markets and imports into the United States Eagle Shot Tequila® in a pistol-shaped bottle. Mexcor Distribs. Inc., v. Purveyors LLC, No. 12-1240 (S.D. Tex., filed April 19, 2012). The plaintiffs allegedly demanded that the defendant cease and desist from doing so, and the defendant failed to respond. Seeking preliminary and permanent injunctive relief, the plaintiffs also seek an accounting and payment of profits earned from the date of first use of the mark, treble damages, attorney’s fees, and costs. They allege trademark infringement and unfair competition under the federal Lanham Act, as well as Texas common law on trademarks and unfair competition. According to the complaint, the defendant’s…
A Venice, Italy-based wine producer has sued a German wine distributor for unfair competition and trademark and copyright infringement in a federal court in California, alleging that the defendant ships to the United States for sale by a U.S. distributor a “gray market” product purporting to be the plaintiff’s pinot grigio wine. Santa Margherita, S.p.A v. Unger Weine KG, 12-3499 (C.D. Cal., filed April 23, 2012). According to the complaint, the U.S. distributor entered a consent order with the plaintiff in 2011 prohibiting it from importing, selling, marketing, and distributing Santa Margherita Pinot Grigio in the United States. The plaintiff contends that it sells its wine in the United States exclusively through an Illinois distributor and closely monitors the distribution network to ensure product quality. The complaint alleges, “Gray Market Santa Margherita Wine is sold and distributed outside this authorized distribution channel and is not subject to the same quality…
The U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB) has issued a final rule ordering “the disclosure of the presence of cochineal extract and carmine on the labels of any alcohol beverage containing one or both of these color additives.” According to TTB, the rule responds to a Food and Drug Administration (FDA) regulation that took effect on January 5, 2011, and requires manufacturers to label these two additives on all food and cosmetic products due to the potential for severe allergic reactions. Effective March 16, 2012, with a final compliance date of April 16, 2013, the TTB rule notes that FDA does not compel labels to disclose that cochineal extract and carmine are derived from insects native to subtropical South America and Mexico. In issuing its final decision, TTB rejected one comment that called for listing the additives’ source despite industry concerns that some consumers “would find the thought…
The U.K. Advertising Standards Authority (ASA) has upheld a complaint alleging that a radio advertisement for Budweiser® beer violated rule 19.6 of the Broadcast Committee of Advertising Practice code by linking the consumption of alcohol to sexual success. According to ASA, the ad produced by AB InBev UK Ltd. featured a male speaker modeled after “the typical American football coach” giving “a motivational style speech” to other male characters preparing for the evening ahead, which would likely include meeting new people. Although InBev argued that the commercial did not explicitly link consumption of its product to sexual prowess but instead “drew upon the commonly attributed American values of optimism, free-spiritedness and a positive attitude,” ASA interpreted the message as implying that “on such nights [] unexpected and significant events, including conception, could take place.” “We considered the ad was likely to be understood as suggesting the group was preparing for…
