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Ever wonder whether the claim that a wine uses “organic grapes” is really true?  Wine is one area where if such claims make their way onto a wine bottle, they are almost certainly valid, as the TTB and the National Organic Program (“NOP”) maintain extremely strict requirements for organic claims on the label.  The NOP has four primary categories for alcoholic beverages: 1) “100% Organic,” 2) “Organic,” meaning at least 95% organic and with no chemically added sulfites, 3) “Made with Organic [ingredients],” requiring at least 70% organic ingredients and may contain chemically added sulfites, and 4) for certain products that contain less than 70% organic ingredients, the ingredients statement may disclose the organic components.

In order to make any organic claims on a wine bottle or other alcohol label, TTB requires several sources of verification, making for a comprehensive but arduous application process.  Along with the items normally required for label approval, applicants must first provide a Processor’s or Handler’s Operation Certificate, which certifies that the winery uses accepted NOP standards.  Notably, imported wines sometimes have difficulty meeting this requirement because foreign certifications are only sufficient if the foreign entity is also a USDA-Accredited Certifying Agent.  Next, applicants must provide an Accredited Certifying Agent Preview, which indicates that the label has been reviewed and found to be in compliance with TTB rules.  Additionally, applicants may need to provide a crop certificate that certifies that the agricultural produce used in the product were grown to NOP standards.

The TTB also has specific rules for the label itself, including requiring a “certification statement,” which includes the name of the accredited certifying agent.  These requirements must be repeated for each vintage year, as labels for new vintages must be resubmitted for approval.

Notably, despite these strict requirements for organic wine labels, other statements on wine bottles that pertain to farming techniques and other “green” claims are largely unregulated by the TTB.  However, this is a fast-evolving area, so stay tuned.

If you need assistance with organic labels, the attorneys at Strike & Techel are familiar with the process and able to help.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2010-2011 · All Rights Reserved ·

Distinctiveness: It’s a core product feature. After putting in the time and money it takes to make your product distinguishable in the marketplace, how do you protect that investment? Alcoholic beverage producers are likely familiar with the concept of trademarks, which are used to identify products and protect consumers from being confused about the source of goods or services.  Trademark rights exist for as long as the marks are used in commerce. They do not have to be registered with the United States Patent and Trademark Office, but registration is highly advisable to provide notice to others interested in the mark that it is already being used in commerce. Trademark laws also protect “trade dress,” meaning features of a product or a product’s packaging that are distinctive and not required for functionality, but rather are used to identify the product in the marketplace as being made by a certain producer. For example the color green in a stop light is functional and could not be protected by trade dress, while the color green used on a product bottle may be protectable under trademark law.

Patents, on the other hand, must be registered in order to secure protection in the market, and the protection exists for a certain time period even if the item or design registered is not used in commerce. A design patent protects the ornamental design for a functional item—such as a unique bottle design that is not explicitly tied to the overall functionality of the item. Depending on the uniqueness and importance of the bottle design, it may be worth the time and capital required to fully prosecute a design patent. Obtaining a design patent requires proof that the design is (a) novel, (b) useful, and (c) not obvious. While the shapes, sizes, and colors that are used to create an association in consumers’ minds between a product itself and the product’s manufacturer may be protectable as trade dress, they may also be protectable, for a limited period of time, by a design patent. For example, the distinctive curved bottle for Coca-Cola was once covered by a design patent. The design patent expired; however, the bottle is still protected under trademark law as trade dress. The process for prosecuting a patent is lengthy and often costly, but if a bottle design is a key product element, it might be worth investigating.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2010-2011 · All Rights Reserved ·