(IMBIBE+BLOG)

At long last, as of May 1, 2012, applications for Out-of-State Winery licenses are being accepted in New Jersey, which will permit out-of-state wineries to ship wine directly to New Jersey consumers.  As discussed in earlier posts, including here, New Jersey’s law was passed early in 2012, and makes New Jersey the 39^th state to allow winery direct shipping.  The law permits wineries producing no more than 250,000 gallons of wine per year to ship wine directly to consumers in the state.  License holders may ship no more than 12 cases of wine each year per consumer for personal use.  The license also includes limited privileges for holders to sell wine directly to retailers, and for tasting room privileges within New Jersey.

No regulations were promulgated to go along with the direct shipping statute, but earlier this week, the New Jersey Division of Alcoholic Beverage Control released instructions and application forms for Out-of-State Winery licenses that provide more information about direct shipping, and which can be found here.  First, the Out-of-State Winery license will be the most expensive direct shipping license in the county, with tiered pricing depending on the amount of wine produced, but costing $938 annually for wineries producing between 50,000 and 250,000 each year.   Additionally, the instructions clarify that wine shipped must be manufactured by the Out-of-State Winery license holder.  Other details of interest to potential applicants include: a) all applicants must register with the Secretary of state; b) a bond is required; c) all applicants must register with the Division of Taxation; and d) all brands must be registered before they can be shipped into the state. Each of these requirements comes with additional fees, so wineries should make sure the anticipated sales volumes warrant the costs of getting set-up.

Please feel free to contact one of our attorneys if you are interested in more information about direct winery shipping in New Jersey.

We’ve been getting lots of inquiries about the privileges and limitations of the new limited off-sale license offered by the ABC.  Though we’ve already commented on the basics of the permit here, we’re following up with answers to the clarification questions we’ve been getting:

Where can I find the privileges for the new off-sale wine license?

Read the ABC Advisory and the enabling statute CAL. BUS. & PROF. CODE §23393.5.

Can I sell tequila and beer with the Type 85?

No, the privilege is limited to wine.

Can I get the Type 85 license if I have an upper-tier California license?

No.  The Type 85 is a retail-tier license, and there are no special exceptions permitting it to be held with an upper-tier license.  On the flip side, you can get it if you are an employee of an on-sale retailer.  This is a key distinction between the Type 85 and the Type 17/20 combination that remains popular in California.

Can I deliver product stored out-of-state directly to consumers in California with the Type 85?

No.  You must have possession and title to the wine in California. It must be delivered to the consumer from your licensed premises in California or the premises of a licensed public warehouse (Type 14 License).

Can I deliver wine to consumers outside of California with the Type 85?

Yes, but only to about 13 states.  2/3 of those states require additional licensing. You can’t reach New York, Texas, Illinois or Florida.

Do I have to have a location to obtain the Type 85?

Yes.  You have to choose an address where the license will be active and your records will be kept.  It may not be open to the public. You will have to post notice at the premises and mail notice to nearby neighbors.

Who can I buy wine from with the Type 85?

Licensed California wholesalers and wineries.  Not retailers.

How do I apply for the Type 85?

If you are interested in obtaining the license, you need to fill out the forms for an original retail license (e.g.  ABC 211-SIG, 217, 208-A/B, 253, 257, 255, 247, 251, 140, entity forms).  You can obtain them from the ABC website, or can hire an attorney or licensing specialist to complete them and assist you with the process.  The filing fee is $342 ($100 application fee plus $242 annual fee).

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2012 · All Rights Reserved ·

Consumers don’t just buy products – they buy brands. Brand loyalty means that protecting ones trademarks is vital to a successful business. If a competitor registers a mark that is confusingly similar to one of your company’s registered marks, one clear way to challenge the registration is to wait until the mark is published for opposition and then file a Notice of Opposition with the United States Trademark Trial and Appeal Board. But you can also jump into the fray earlier, before the mark is published for opposition, by sending a Letter of Protest to the United States Patent and Trademark Office (USPTO). The Letter of Protest is a request for the attorney reviewing the proposed mark to consider certain information, which must be provided with the Letter of Protest, when deciding whether the mark should move forward in the registration process or not. If the USPTO believes the evidence provided has merit, the evidence, but not the cover letter itself, will be provided to the reviewing attorney. Thus, it is important that a broad, factually accurate, and objectively persuasive set of evidence is provided. The Letter of Protest may raise any grounds for rejection that are available to the examining attorney. The most popular issues raised tend to be likelihood of confusion with a registered mark, descriptiveness of the proposed mark, and arguments that the proposed mark is generic.

While a Letter of Protest can be filed after a proposed mark is published for opposition, the deadline is thirty days after the proposed mark’s publication. Additionally, the standard of review for examining the evidence provided increases after the proposed mark is published. If a Letter of Protest is filed prior to publication of the proposed mark, the USPTO reviews the evidence to see if it is relevant and supports a reasonable ground for denying registration of the proposed mark. But a Letter of Protest submitted after publication of the proposed mark will be reviewed to see if the evidence supports a prima facie case for refusal, meaning a case for refusal that is self-evident. This standard of review is much higher and more difficult to meet. Thus, if you are going to file a Letter of Protest, it is important to do so early in the examination process. The attorneys at Strike & Techel have filed successful Letters of Protest on behalf of clients before. Please feel free to contact one of our attorneys if you are interested in such a filing or need other trademark assistance.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2012 · All Rights Reserved ·

Restaurant and bar licensees that play music in their establishments should take notice of the Ninth Circuit Court of Appeals’ recent decision in Range Road Music, Inc. et al. v. East Coast Foods, Inc. et al., 2012 WL 502510 (9^th Cir. 2012).  In the opinion, which can be found here, the Court affirmed a lower court decision finding that East Coast engaged in copyright infringement through its unauthorized use of copyrighted songs in its southern California restaurant, Roscoe’s House of Chicken and Waffles, and the accompanying jazz club, the Sea Bird Jazz Lounge.

The plaintiffs in Range Road were several record companies, each members of the American Society of Composers, Authors, and Publishers (“ASCAP”).    The court found that after East Coast opened Roscoe’s and the Sea Bird in 2001, the record companies repeatedly offered East Coast a license to play music owned by ASCAP members.  East Coast failed to purchase a license for several years, and in 2008 the record companies independently investigated whether copyright infringement was occurring at Roscoe’s and the Sea Bird Lounge.  The investigator discovered that the two establishments were playing CDs that included the record companies’ copyrighted songs and the record companies brought suit for copyright infringement.  The court granted their motion for summary judgment, finding eight counts of copyright infringement, and assessing damages of $4,500 for each infringed work.   The court also awarded the music companies attorney’s fees and costs in the amount of $162,728.22.  The Ninth Circuit Court of Appeals affirmed both the finding of copyright infringement and the attorneys’ fees award, finding that East Coast “could have avoided liability by purchasing a valid license at any point during the seven years in which ASCAP importuned them to do so.”

Under the Copyright Act, copyright owners have the exclusive right, among other things, to perform the copyrighted work publicly.  A plaintiff can establish a case for copyright infringement by showing 1) ownership of a valid copyright, and 2) copying of original elements of the copyrighted work, which includes performing a copyrighted work publicly.  Statutory damages for copyright infringement range from $750 to $30,000 for each infringement.

Restaurant and bar owners who play recorded music or feature performances of live music should take notice of the Range Road decision and be aware of the basics of the Copyright Act.  Letters from ASCAP or similar recording companies should not be ignored.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2012 · All Rights Reserved ·

As readers of this blog may recall, at the end of 2011 interesting new precedent came out of Texas when the United States District Court for the Western District of Texas granted partial summary judgment for plaintiffs in Authentic Beverages Co., Inc. v. Tex. Alcoholic Beverage Comm’n, No. A-10-CA-710-SS (D. W.D. Tex., December 19, 2011), and consequently struck down some Texas’ laws regarding beer labeling, advertising alcoholic content and suppliers telling consumers where their products can be found for purchase. (See our prior coverage of the case here.) About a month later the Texas Alcoholic Beverage Commission (“TABC”) issued Marketing Practices Bulletin 49 regarding the case (available here) and today they’ve just released Marketing Practices Bulletin 50 (available here). The new bulletin stresses that Texas’ stance on suppliers pre-arranging and pre-announcing promotional activities has not changed.

Texas allows liquor manufacturers and wholesalers to pre-arrange and pre-announce promotional activities, for example bar spending or sampling events, novelty item giveaways, and promotional appearances, but they do not allow beer manufacturers and distributors to do the same. While the Authentic Beverages decision resulted in the allowance for beer manufacturers and distributors to advertise retail locations where their products can be purchased (provided the advertising is not cooperative), it has not changed anything regarding pre-arrangement and pre-announcement of promotions. Those promotional activities by beer suppliers must be spontaneous, meaning they are not pre-arranged with retailers or pre-announced to consumers. The TABC is still in the process of formal rulemaking to deal with the effects of the Authentic Beverages decision, at which time Marketing Practices Bulletins 49 and 50 will be superseded by the new rules, but we do not expect that their position will change on this matter and violations are likely an enforcement priority for the TABC.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2012 · All Rights Reserved ·