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Time

I always sort of knew my wife would end up in Time Magazine, with Donald Trump and a bottle of whiskey. The Time article about Margie Lehrman, ACSA, whiskey — and even George Washington — is here.

The key part says:

What is bad news for consumers is worse news for distillers in the U.S. says Margie Lehrman, executive director of the American Craft Spirits Association — especially small and medium-sized businesses. “The EU is a very important market for craft producers who have really boomed in recent years, creating 20,000 new jobs,” she says. “The President should consider the impact not only on the companies but also on the communities that they’re working in. These distilleries have often brought life and even tourism to run-down parts of towns, that previously people just didn’t go to.”

Lehrman also questions the sincerity of Trump’s “America First” rhetoric. “It’s a shame whiskey has been caught up in this because if you go back to the roots of our country, with George Washington having a distillery at Mount Vernon, it’s really American heritage that’s being attacked here,” she says. “We urge the E.U. and the U.S. to work together to fix this and a stance that is mutually beneficial.”

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How Old is that Old Charter?

The plaintiff in a would-be class action lawsuit against Sazerac voluntarily dismissed all his claims in late January, ending the litigation. The case (Parker v. Buffalo Trace Distillery, Inc. et al.) began in November of last year, and concerned a subtle change on the label of Sazerac’s “Old Charter” brand of bourbon whiskey. The older and newer labels are above, side by side.

Among the various changes, the old label says, “AGED 8 YEARS,” while the new label simply displays the number “8.”

Plaintiff Nicholas Parker alleged that the Old Charter bourbon sold under the new label was no longer aged for 8 years, and that Sazerac’s continued use of the number “8” on the label caused consumers to believe that the bourbon was aged for 8 years. Sazerac responded with a motion to dismiss the complaint, alleging that Alcohol and Tobacco Tax and Trade Bureau (TTB) approval of the label provided Sazerac with a “safe harbor” from Mr. Parker’s claims.

Just two weeks after Sazerac filed its motion to dismiss, Mr. Parker voluntarily dismissed the action. This voluntary dismissal meant that the court did not have to rule on the merits of Sazerac’s safe harbor defense, or Mr. Parker’s claims. If the Tito’s “Handmade” Vodka cases are any indication, it is likely that the safe harbor defense would not have insulated Sazerac in this case. It would seem that the parties reached a settlement, although the terms of any such settlement will likely remain private. Old Charter drinkers should keep an eye out for future label changes, which might indicate the terms of a settlement reached.

The voluntary dismissal notwithstanding, Mr. Parker’s claims raise an interesting issue: Shouldn’t TTB have a policy for this sort of thing? As it turns out, TTB does. TTB’s general stance has been that unexplained numbers on spirits labels are prohibited. That is, if you want to say “8,” you need to explain the significance of the number (e.g., “AGED 8 YEARS,” or “A BLEND FROM 8 BARRELS”). Take Jack Daniel’s, for instance:

While the number “7” appears prominently, the context (i.e., “Old No. 7 Brand”) makes it clear enough that “7” is part of the brand name, not the age of the spirit.

Re-examining the Old Charter labels, the new label does not seem to fall in line with TTB’s tenet. Although Sazerac’s incorporation of the unexplained “8” did not lead to a label rejection in this instance, it probably goes a long way toward explaining why Mr. Parker pounced on Mr. Brown.

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Aged 12 Seconds

The whiskey rules are pretty strict when it comes to straight whiskey. It has to be aged two years or more, in oak. But for many other types of whiskey, the rules have gotten pretty lax, and it seems like it only has to be aged but a moment.

Where you have a whiskey not designated as straight, it’s ok to age it let’s say one month, but the regulations require an age statement, any time the total age is less than four years. Here are a few examples of such age statements, roughly from shortest to not so short.

In many cases, the age statement is fairly small, on the back, mixed with other text, or some combination thereof. If you prefer whiskey aged more than “a very short time” — you may need to keep your eyes peeled, or just look for straight whiskey. Let us know if you see other good examples.

The full regulation is here and a key excerpt is in the image below.

Finally, TTB has a helpful FAQ here. It tends to say this sort of thing is no longer ok. Not ok because it tends to overstate the age (AGED LESS THAN TWO YEARS). It is hard to know whether it’s aged 12 seconds, 1.99 years, or — 0.00000038052 years.

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Bourbon-Barrel-Aged Wine

bzin

At USBevX a few days ago I heard lots of questions about various wines aged in Bourbon barrels. But I did not hear lots of answers so I thought I would take a look and see what’s going on. This Fetzer example, above, seems like a good place to start.

It tends to show that it is okay to mention Bourbon on a vintage- and varietal-designated wine. I am a little surprised I don’t see any reference to a formula approval, or to the amount of aging in said barrel. This Fetzer label is also noteworthy because it quickly drew the ire of the big Buffalo, as in Buffalo Trace; Sazerac charged at Fetzer for attempting to graze on land staked out long ago by the whiskey company. This really good article discusses the trademark dispute, about 1/3 of the way down the page.

I see about 64 wine labels with reference to Bourbon as approved by TTB during the past five years. Another representative one, from another big company, is this Robert Mondavi approval. I don’t really see any comparable labels, in the prior five year period. From these two examples, and a bit of asking around, it sounds like the reference to Bourbon should not appear on the same line as the wine’s class/type statement. Also, you are more likely to need aging details (e.g., Aged 6 Months) on the label if the age reference appears on the “brand label.”

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Jim Beam Takes Aim at Brown-Forman’s Claim to “Double Oaked”

woodOn October 19, 2015, Jim Beam filed a Notice of Opposition at the United State Patent and Trademark Office (PTO) Trademark Trial and Appeal Board against Brown-Forman’s pending trademark application for WOODFORD RESERVE DOUBLE OAKED in connection with “Alcoholic beverages except beers.” In the Notice, Beam alleges that the phrase “Double Oaked” is either generic or merely descriptive and, accordingly, that the WOODFORD RESERVE DOUBLE OAKED mark should not be allowed to register without a disclaimer of that phrase.

Notice:  a longer version of this article first appeared in Modern Distillery Age.

Forman applied for registration of WOODFORD RESERVE DOUBLE OAKED back in November 2014. The examining attorney reviewing the application required Forman to disclaim the word “Reserve,” but not the phrase “Double Oaked.” Forman complied, and in late April, the PTO published the application for opposition by third parties. Enter Beam, filing an opposition, arguing that “[Beam] and third parties will be damaged by the registration of [the] [m]ark without a disclaimer of “Double Oaked.”

Specifically, Beam alleges that “Double Oaked” is a generic term “for the process of aging alcoholic beverages in a second oak barrel.” The phrase, Beam continues, is “incapable of distinguishing [Forman]’s alcoholic beverages from those produced and sold by others because its primary significance is to name a type of product rather than indicate the product’s source or origin.” Alternatively, Beam alleges that “Double Oaked” is merely descriptive, because it “describe[s] [Forman]’s process of aging its product … in a second oak barrel.”

The PTO typically refuses registration for marks that contain a generic or merely descriptive phrase, unless an applicant agrees to disclaim any right to the phrase. As defined by the PTO, “A mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services” (e.g., “creamy” to describe a spirit). Generic terms are terms that consumers primarily understand as the common name for a class or type of good or service (e.g., “whiskey” to classify a spirit).

In this case, Beam argues that “Double Oaked” is generic because it refers to a type of aging process (i.e., aging alcoholic beverages in a second oak barrel), which it claims is common in the industry. Beam says that registration of Forman’s mark without a disclaimer of the “Double Oaked” phrase would harm producers, presumably because they have an interest in using the phrase to designate the process used to produce their products.

Beam also argues that “Double Oaked” is merely descriptive, because it refers to the characteristics and aging process of Forman’s bourbon. As evidence, Beam points to the dictionary definitions of “double” and “oaked” (both adjectives), as well as Forman’s own allegedly descriptive use of the term on its labels.

Beam also points to the PTO’s treatment of two similar trademarks as evidence that Forman should have to disclaim the phrase “Double Oaked.” Beam notes that “SINGLE OAK” was allowed registration, but only on the supplemental register, along with other merely descriptive marks. Beam also notes that “DOUBLE OAKED” for wine was previously rejected by the PTO as being merely descriptive.

Forman’s answer to Beam’s opposition is due on November 28, 2015.

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