CBA Record March-April 2020

The Fruits of Their Labor: Practitioners Discuss Beer, Wine, Spirits and the Law By Amy Cook, CBA Editorial Board

T here’s a whole area of practice that centers on the intricate web of beer, wine and spirits laws. (Right about now, many readers are saying to themselves, why was I not told this in law school?) This February seminar touched on intellectual property and regulatory issues within the beverage industry. Panelists, including a brewery owner giving the client’s perspective, discussed naming a business, protecting valuable intellectual property and dealing with myriad regulatory frameworks. Trademark Shyla Jones, of counsel at Ice Miller, discussed trademarks, and said that obtaining and protecting trademarks serves as a “sustainable competitive advantage.” “Invest in your brand,” she told the attendees. “And you must then police and enforce your brand.” The strongest trademarks are those that are “arbitrary” or “fanciful” but descriptive trademarks are enforceable as well. For instance, “Dry Hop” could be descrip- tive or it could be suggestive. If a term is merely descriptive, it needs to be in use for about five years, or the user can pres- ent evidence such as surveys, advertising, and sales figures to show that consumers connect the mark or trade dress to your brand. Jones also reminded lawyers to think beyond the label. Bottle shapes and tap handles can also qualify for trademark protection. While common law trademark pro- tection exists (the “TM”), federal trade-

means for them legally. When a client walks in, O’Donaghue’s first question is asking what type of business they want to be in, for instance, brewer or brew pub—because the legalities will be different. Distribution D’Allessandro’s group is working for more flexibility in the existing three tier system of producers to distributors to retailers. She notes that they are compet- ing with other industry members who have different interests. She says of her organization, “You have to do relation- ship building, and work to better reflect consumer demands.” For instance, in 2010 the craft brewer’s license was cre- ated to be able to self-distribute such beer. Brewers can now interact with retailers and consumers to build their brand. Another example she discussed was that previously, businesses had to have a distributor to take product from a production facility to a brew pub. Now, a certain amount can be transferred without use of a distributor. A final perk of attending a beverage law seminar: upon the conclusion of the seminar, the attendees and panelists were treated to a sample of some craft brews that these lawyers helped bring to fruition. To watch the on demand video of “Intellectual Property: Beer, Wine, Spirits and the Law” (2/5/2020), visit www.chicagobar.org/cle for more information.

mark protection (the circle “R”) affords additional benefits such as the ability to file an intent to sue, provides exclusive nationwide priority, serves as basis for foreign filing, offers a presumption of validity and ownership, and provides for statutory damages for counterfeiting. Opening a Brewpub or Restaurant Ashley Brandt, a partner at Goldstein and McClintock, and author of the popular Libation Law blog, along with Steve Sobel, owner of Burnt City Brew- ery, discussed the potential difficulties business owners face when starting and running a brewpub or restaurant, from finding a name that isn’t already taken, to employees taking trade secrets with them when they leave, to trade dress infringement that can occur with loo- kalike bottles. Infringement is usually noticed with a few months in part due to social media. However, they cau- tioned, don’t whip out those cease-and- desist letters quite yet—collaborations between companies have become more common because both can benefit from positive association. William O’Donaghue, partner at Daley and Georges, and general coun- sel for Illinois Craft Brewers Guild, and Danielle D’Allessandro, executive director of the Guild, spoke about dif- ficulties—and potential solutions—that affect brewers and brew pubs. The law has lagged in keeping up with this burgeoning industry. Even potential business owners may be unaware of the differences in categories and what that

Free Meeting Room Space for Members at Association Headquarters The CBA is pleased to offer free meeting room space at Association Headquarters (321 S. Plymouth Ct., Chicago, IL 60604) as a benefit to our members. The meeting rooms create the perfect environment to work between meetings or courtroom appearances, or to escape the office for a couple hours. All rooms are equipped with Wi-Fi. You can reserve shared meeting room space or a private room Monday through Friday, 8:30 a.m. to 11:30 a.m. and 2:00 p.m. to 6:00 p.m. See details and a reservation form at www.chicagobar.org/chicagobar/freemeetingspace.

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