Law Offices of John P. Connell, P.C.: There are an estimated 2,750 breweries in the United States, 50 of which are located in Massachusetts. With the recent craft-brewery movement and the increasing number of contract brewing relationships in the industry, it is important for brewers to make their beer readily distinguishable in order to stand out in the market. Good marketing practices in the beer industry include choosing and securing an attractive and inimitable label for your beer. However, brewers must consider many legal factors that are involved in the labeling process.
Trademarks On Labels
It is important to create and register all trademarks used by your brewing business. For a mark to be protectable under trademark law, it must either be sufficiently distinctive or have acquired secondary meaning. Secondary meaning is acquired when consumers in the beer market generally make a mental association between your mark and your business. As long at least one of these two characteristics is met, trademarks can be acquired for the name of your beer, the name of your brewery, any slogans or logos your brewery may use, the shape of your beer bottle, and even the combination of all of these elements together.
A brewer should conduct a diligent search to ensure the mark he or she desires to use has not already been registered. This can be done on the U.S. Patent and Trademark Office’s website and similarly on the Alcohol Tax and Trade Bureau (TTB) online database. Securing your trademarks will cause any marks found on your label to be distinguished from those of your competitors, not only by consumers perceiving your product, but by the law as well. After you have chosen your marks, determined they are adequate for protection, and conducted a diligent search to ensure their availability, registering your marks will prevent any subsequent user from adopting them and potentially diluting any association consumers have made between those marks and your business.
Other Information On Labels
Pursuant to 27 CFR § 7.22, all beer labels should include the beer’s brand name; the class, such as “ale,” or “stout;” the name and address of the principal place of business where the beer is bottled or packed; the net contents; and the alcohol content. All statements made on the labels, including those required under § 7.20-7.29, may not be false and must not, irrespective of falsity, create a misleading impression to consumers. 27 CFR § 7.29.
The Federal Alcohol Administration Act (FFA) grants the Secretary of the Treasury the right to regulate labels for the purpose of (1) ensuring consumers have adequate information as to the identity and quality of the content of alcoholic beverages and (2) preventing consumer deception, by prohibiting statements on the label which would be found likely to mislead the consumer. 27 USC § 205(e). Statements regarding age, guarantees, and manufacturing processes must similarly comply with this law.
Getting Approval Of Your Label
The TTB provides that a Certificate of Label Approval (COLA) must be obtained for each brand of beer used in trade. An approved COLA is necessary for finished beer to be removed from the bonded brewery where beer is bottled or packaged, or from U.S. Customs.
“Pre-COLA Evaluation,” refers to several processes the TTB may also require prior to COLA application, in order to determine whether the label properly and accurately represents the product it will be used to identify. The first of these evaluations, “Formula,” requires a detailed list of every ingredient and quantity used in the malt beverage. This evaluation applies to flavored malt beverages in particular. The formula provided must include alcohol content and certain information regarding the flavoring used. Another example of a Pre-Cola evaluation employed by the TTB is “laboratory analysis,” which applies only to those malt beverages representing themselves as alcohol free. This evaluation requires a sample of the beverage itself to be submitted to the TTB, for determination of whether that beverage corresponds with the label identifying it. Other Pre-COLA evaluation procedures may be found at the TTB’s website.
Essentially, COLAs ensure the creation and marketing of beer is in compliance with Federal law. However the COLAs procedure, as well as the federal label requirements and trademark laws mentioned above, govern winemakers and distillers as well.
CONTRIBUTED BY COURTNEY MCGEE
© Law Offices of John P. Connell, P.C., 2013.