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Trademark owners that want to make sure their marks are not used in the newly-established .XXX internet domain have until October 28, 2011, to opt out of the domain.  .XXX is a domain for adult entertainment websites, and was approved earlier this year by the Internet Corporation for Assigned Names and Numbers.  The sunrise period for .XXX began on September 7, and runs through October 28, during which time applications are being accepted for adult entertainment industry members to register with the domain (called the “Sunrise A” period), as well as for trademark owners that are not in the adult entertainment industry to block the use of their names on the .XXX domain (the “Sunrise B” period).  A trademark owner that registers during the Sunrise B period will effectively remove its brand name from the list of available domain names.

After October 28th, domain names become available to the general public, and trademark owners that have not opted out are at risk of having their marks used on the .XXX domain.  The cost to register in Sunrise B generally ranges from $200 to $300, depending on which domain registrar is used to opt out of .XXX.  You can find the list of accredited registrars here.

If you need assistance with registering your marks during the Sunrise B period, the attorneys at Strike & Techel are available to help.

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

We get lots of questions on the topic of “fanciful names” in the context of certificate of label approvals (COLAs) through the Alcohol & Tobacco Tax & Trade Bureau (TTB). The TTB recently posted a helpful clarification, which we wanted to pass along:

Fanciful Name.  Have you ever wondered what information should be entered into the “fanciful name” field on the COLA application?  A fanciful name is a term used in addition to the brand name for the purposes of further identifying a product.  A fanciful name is mandatory for any malt beverage product that is not known to the trade under a particular designation (27 CFR 7.24(a)) or distilled spirits products that do not meet the standards of identity or does not conform to trade and consumer understanding (27 CFR 5.34(a)).  The use of a fanciful name on a flavored wine product or any wine product that meets a standard of identity is not required.  Please note that if a fanciful name is used on a flavored wine product, it must appear in direct conjunction with a truthful and adequate statement of composition. (27 CFR 4.34(a))

In other words, if your distilled spirits or beer product does not fall within one of the specifically defined classifications, e.g., whiskey, gin, rum, tequila, beer, lager, ale, porter, stout, etc., then it must be labeled with a “truthful and adequate statement of composition” and a fanciful name in addition to the brand name.  This generally occurs when a product starts as a distilled spirit or malt beverage product, but then additional flavorings or ingredients are added and those additional items are not permitted within the standard defined classifications.   In the case of wine, the fanciful name is optional.  Brand names and fanciful names cannot contain the name of a class or type of alcohol, so “vodka” or “whiskey” cannot serve as a fanciful name.

When a fanciful name is mandatory, it is important to plan ahead when creating a new product name and label.  We have seen products identified by a single brand name that could not obtain a label approval because they were required to also have a fanciful name.  Applicants in that situation are required to add a new name to be used as a fanciful name and revise their labels so that it is included.  An example of a properly identified distilled spirits product is “ABC Brand, Peachy Passion, neutral spirits with added fruit juice and natural flavorings.”  It uses a brand name, a fanciful name, and a statement of composition, as required under the labeling regulations. For most products, fanciful names are not required but it’s important to consider how TTB will classify your product before you create your labels and brand identity.    

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