Lex Vini

New TTB Guidelines on Social Media and Alcohol Beverage Advertising

noreply@blogger.com (Dickenson Peatman and Fogarty) — Thu, 16 May 2013 21:04:00 +0000

Earlier this week, the TTB issued an Industry Circular providing additional guidance for alcohol beverage producers, importers, and wholesalers using social media.

The TTB regulates the advertising of wine, distilled spirits, and beer, and generally prohibits deceptive or misleading advertising. The TTB also prohibits industry members from engaging in certain advertising practices or making certain statements. For example, wine advertisements may not disparage a competitor's products or make statements or including designs that are "obscene or indecent." There are a number of other restrictions in the Code of Federal Regulations.

In addition, there are certain mandatory statements that must appear in advertisements for alcohol beverages, including but not limited to the name and location of the industry member and the class and type of alcohol.

The Industry Circular makes clear that TTB’s regulations regarding mandatory statements and prohibited practices extends to social media channels, including social network services such as Facebook, video sharing sites such as YouTube, blogs, and "microblogs" (which according to TTB, includes Twitter and Tumblr), and mobile applications.

Here’s a quick summary of the guidelines regarding those channels:

Social Networks (incl. Facebook)	Applies to “fan pages for alcohol beverage products or companies and any content regarding alcohol beverage products posted to the pages by the industry member.” Mandatory statements must be included on any “member fan page,” and should not be “hidden or buried.” TTB “strongly recommends” these statements be included in a conspicuous location, such as the profile section of the fan page (such as the “About” section on a Facebook fan page).
Video Sharing Sites	Applies to “[v]ideos about alcohol beverages that are posted to video sharing sites by industry members.” Mandatory statements should be included in “profile” section of individual videos or on the “channel” information if the industry member maintains a channel.
Blogs	Applies to any blog maintained by an industry member that “discusses issues related to the company, its products, or the industry in general….” Also applies to “anything posted by the industry member on the blog” Mandatory statements must be included.
Microblogs (incl. Tumblr, Twitter)	Applies to any written statement “calculated to induce sales in interstate or foreign commerce.” Mandatory statements must be included and TTB recommends including these statements on the profile page.
Mobile Applications	Applies to apps for mobile or other handheld devices "related to alcohol beverages." Such apps are considered "consumer specialty advertisement," similar to ash trays, matches, cork screws, etc. Thus, only mandatory statement is the company name or brand name of the product.

A few interesting take-aways from reviewing the TTB guidelines.

First, industry members that maintain a social network presence, such as a Facebook fan page, are responsible for content that they post, but the advisory seems to carve out posts by consumers on industry member sites or pages. For example, in discussing social networks, the circular states: “TTB considers fan pages for alcohol beverage products or companies and any content regarding alcohol beverage products posted to the pages by the industry member to …[be] subject to the provisions of the FAA Act and TTB regulations.” By focusing on content “posted to the pages by the industry members,” the TTB apparently recognized that alcohol beverage companies should not be held responsible should a “fan” post a comment that violates federal regulations.

Second, the mandatory information provisions related to "microblogs" do not take into account the fact that Twitter's profile is limited to 160 characters. While the TTB explicitly stated that each individual "microblog post" (i.e., "Tweet") need not contain the mandatory statements because the 140 character limitation makes it "impractical" to do so, it also recommended that the mandatory statements should appear on the "microblog profile page."

Third, the TTB also stated that if an industry member includes a "link" to another website or other content, the TTB may consider the contents of that link as part of the industry member's advertisement. Thus, by including a link to other content, the industry member may be responsible should that content fail to comply with TTB advertising regulations.

Finally, the TTB Industry Circular made no mention of third party marketing websites, and whether producers were responsible should the content of those websites violate the advertising regulations.

While there are still some unanswered questions regarding federal regulation of alcohol beverage online advertising, one thing is clear: producers, importers, wholesalers, and anyone involved in the promotion or sale of alcohol beverages should comply with the mandatory statements and prohibited advertising practices regardless of what channel they use for advertising.

For more information or assistance on alcohol beverage advertising, contact John Trinidad (jtrinidad@dpf-law.com).

This post is made available for general informational purposes only and none of the information provided should be considered to constitute legal advice

A Hit Like a Ton of BRIX - Trademark Office Protects Restaurant's Rights in BRIX Trademark

noreply@blogger.com (Dickenson Peatman and Fogarty) — Thu, 02 May 2013 05:12:00 +0000

One of the many benefits of obtaining federal trademark or service mark protection is that the Trademark Office will prevent registration of marks which are confusingly similar.

Yountville Partners, Inc., simply by registering its marks BRIX and BRIXX for restaurant and bar services, was successful in preventing the registration of the marks BRIX WINE CELLARS, BRIX CELLARS and BRIX WINE CELLARS and Design for wine bars and restaurant services (“other BRIX marks”). The Trademark Office refused to register the other BRIX marks for wine bars and restaurant services finding a likelihood of confusion with BRIX/BRIXX marks for restaurant services. First, the Trademark Office determined that the marks were virtually identical giving no weight to the argument that the words “wine” and “cellars” helped to distinguish the marks.

Second, the Trademark Office found that the “restaurant services” and "wine bars" and the other services recited in the applications and registrations were deemed to be legally identical. Applicant’s arguments that its wine bar is “somewhat dark and sophisticated and has a relatively enclosed atmosphere,” while registrant restaurant establishment “has a relatively light and airy atmosphere overlooking outdoor vistas” was unpersuasive. Further, the Trademark Office was not convinced that restaurant consumers were “sophisticated” stating that “restaurant and bar services can run the gamut in terms of cost and clientele.”

Finally, Yountville Partners, Inc. enjoyed a presumption of exclusive right to nationwide use of the registered marks regardless of its actual extent of use. Thus, the argument that the other BRIX marks were only used in Houston so there would be no likelihood of confusion was unpersuasive.

In the United States, the Trademark Office will work to protect the value of marks for those that avail themselves of the relatively inexpensive trademark and service mark registration system. However, the USPTO makes decisions as to registration of marks but has no jurisdiction to stop a party from using a mark. Such jurisdiction rests exclusively with the state and federal courts.

This opinion, which is not a precedent, was recently obtained in a proceeding before the U.S. Patent and Trademark Office (“USPTO”) Trademark Trial and Appeal Board (“TTAB”) In re Brix Cellars LLC dba Brix Wine Cellars, Serial Nos. 85111647, 85111682 and 85112408 (TTAB 2013). The following is a link to the opinion: http://ttabvue.uspto.gov/ttabvue/ttabvue-85111647-EXA-20.pdf.

For any questions or assistance on trademark matters contact Katja Loeffelholz at kl@dpf-law.com.

Diageo Americas v. Major Brands: Franchise Law Litigation and Forum Selection

noreply@blogger.com (Dickenson Peatman and Fogarty) — Fri, 19 Apr 2013 00:59:00 +0000

Wineries big and small face difficulties in trying to terminate distribution ageements in franchise law states. We posted an article a few weeks ago about a lawsuit filed by Diageo Americas, Inc. against its Missouri distributor, Major Brands, Inc. Diageo has asked the federal district court in Connecticut to issue a declaratory judgment allowing the company to terminate its Missouri distribution agreement. The court will first have to determine which state (Connecticut or Missouri) is the proper forum to hear the parties' dispute.

Diageo filed its complaint in federal district court in Connecticut pursuant to a "forum selection" clause in the agreements stating that jurisdiction and venue for any litigation between the parties would be in the State of Connecticut.

Major Brands wants this dispute heard in Missouri state court, and has taken numerous steps to take the case out of Connecticut. First, Major Brands filed its own lawsuit in Missouri (Cause No. 1322-CC00534) shortly after Diageo filed its complaint, claiming that Diageo's attempted termination of the parties' agreement violated Missouri franchise law. The Missouri lawsuit also names Mid-Continent Distributors, Inc. d/b/a Glazer's Midwest as a co-defendant.

In addition, Major Brands filed a motion to dismiss Diageo's federal court case in Connecticut earlier this month, arguing in part that the court should deem the forum selection clause unenforceable because of Missouri's strong public policy interest in liquor control and protection of a Missouri franchisee. "Because of Missouri's complex and specific regulations regarding both liquor control and termination of Missouri franchisees, a ruling by this Court would disrupt the State's attempt to establish a coherent policy regarding these important concerns…." It is not surprising that Major Brands is attempting to keep the dispute in state court. Distributors in franchise states may believe that a state court provides a friendlier forum for their claims than federal court.

The Federal District Court's ruling on Major Brand's motion will be closely watched by suppliers and distributors in franchise law states. If the court denies the motion and concludes that the forum selection clause is enforceable, then alcohol beverage suppliers may be well served by including similar forum selection clause provisions in any agreement governing distribution in franchise states.

For more information on distributor termination or franchise law issues, please contact John Trinidad at jtrinidad@dpf-law.com.

The NYSLA Ruling – What it Really Means to Licensees and Third Party Marketers

noreply@blogger.com (Dickenson Peatman and Fogarty) — Fri, 12 Apr 2013 07:39:00 +0000

We have received several questions from clients regarding the New York State Liquor Authority’s ruling on April 9, 2013 regarding the “legality of internet advertising platforms.” The ruling, which addresses the relationship between a New York state wholesaler, a New York state retailer, a third party internet marketer and ShipCompliant, is narrow and specifically applies only to sales under ShipCompliant’s MarketPlace Platform conducted through New York’s three tier system. The NYSLA does however also provide some guidance as to the type of third party marketing arrangements that would be permitted, pending issuance of a more thorough advisory on the matter in the future.

It is important to note that the ruling does not address or impact shipping by out of state wineries that hold direct to consumer shipper licenses for New York or the legality of ShipCompliant’s Producer Direct program used by some wineries to assist with their direct to consumer shipments.

Summary of NYSLA Decision

Following an inquiry into the relationships and responsibility of the involved parties, the NYSLA found that the retailer and wholesaler in this case (the “licensed sellers”) exercised little to no control over the sales being made by the third party marketer/advertiser and played a “passive” role. The unlicensed third party marketer, on the other hand, exercised a “high degree of control over the business operations of the participating licensed seller”, including selecting which wines would be sold, setting the prices at which the wine would be sold, managing the storage and shipment of the wines sold and controlling the advertising for the wines sold, all with little to no oversight from the licensed sellers. According to the NYSLA, the third party marketer also received a “predominant proportion of the proceeds from the sale of alcoholic beverages,” while the licensed sellers simply received a flat fee. Based on these facts, the NYSLA held that the unlicensed third party marketer/advertiser was making sales without a license and that, therefore, the “relationship between the advertiser and the licensed seller in the MarketPlace Platform system” violates New York state regulations which “prohibit a licensee from making its license available to a person who has not been approved by the NYSLA” to hold that license.

Because of the narrow nature of this decision, the NYSLA stated that it intended to issue an advisory that will provide comprehensive guidance to the industry on the involvement of unlicensed parties in Internet sales of alcohol beverages to consumers. However, until such time, the NYSLA offered the following guidance to industry members:

* Licensees may rely on an opinion by the NYSLA Office of Counsel that provides that “a third party may allow a licensee to advertise its products on the third party’s website, provided that consumers are directed to the licensee’s website to place an order” and that the third party’s compensation is limited to a flat fee that is not contingent on the number of sales or the amount sold.

* Arrangements where licensed sellers take a passive role and/or incur no business risk are prohibited.

* Arrangements where an advertiser, third party marketer or other unlicensed party performs or is permitted to perform retail functions, such as deciding what products will be sold, what prices should be charged, how funds are controlled and distributed or the amount of the licensee’s profits are prohibited.

* Arrangements where the compensation to a third party constitutes a substantial portion of the sales or sales made are prohibited.

Notably, the NYSLA made clear that in evaluating the legality of these types of arrangements, it would not only look at the written agreements between the parties, but would also “evaluat4e the actual, practical, day-to-day functioning of the arrangements”, as it did in this case.

Comparison to California ABC Third Party Provider Advisory

On November 1, 2011, the California Department of Alcoholic Beverage Control issued an advisory on Third Party Providers, in which it stated that unlicensed third party marketers can facilitate the sale of wine over the Internet, provided that the benefited alcoholic beverage licensee at all times retains control over all sales transactions, including all decisions regarding pricing, selection, shipping and fulfillment. Under the California Advisory, a third party marketer would therefore be permitted to place advertising for an alcoholic beverage at the direction of a licensee, make buying recommendations to a consumer, direct consumers to specific licensees, receive orders and pass them on to the licensee for acceptance and fulfillment, process payments (although the licensee ultimately must control the funds and the flow of funds) and assist with shipping arrangements. But again, the licensee must at all times retain control over pricing, selection and fulfillment. The third party marketers may be compensated for their services, so long as the compensation is reasonable and does not result in any “actual or de facto control” over the licensee by the third party marketer.

The CA Advisory and the NYSLA ruling are consistent to the extent that both require that control for alcoholic beverage sales be held by a licensed seller. However, there are notable differences between the approaches taken by these two agencies and it is unclear whether the NYSLA’s ultimate stance on these issues will be in line with the CA ABC. For instance, the NYSLA suggested that, pending the NYSLA’s definitive statement on these issues, licensees should rely on an opinion by the NYSLA Office of Counsel that provides that “a third party may allow a licensee to advertise its products on the third party’s website, provided that consumers are directed to the licensee’s website to place an order” and that the third party’s compensation is limited to a flat fee that is not contingent on the number of sales or the amount sold. These requirements are not included in the CA ABC Advisory and in fact sales made on third party marketers’ sites (rather than on the licensee’s site) and reasonable fee arrangements (other than solely flat fees) would be permissible under California’s regulations so long as they comply with the remaining portions of the CA ABC Advisory and California alcoholic beverage rules and regulations.

A final decision on the permissibility of sales of alcoholic beverages using third party marketers will be forthcoming from the NYSLA and NYSLA intends to hold public hearings on the matter, allowing interested parties the opportunity to present their positions. In the meantime, license holders, third party marketers and other entities participating in third party marketing-type sales in New York should operate in accordance with the guidelines set forth by the NYSLA in the ruling.

In the end, licensees, third party marketers and other parties involved with these transactions should keep in mind that the sales of alcoholic beverages using third party marketers remains a grey area and should keep close eye on how these issues develop throughout the country.

For more information or assistance with third party marketing issues, please contact Bahaneh Hobel at bhobel@dpf-law.com

Franchise Laws and Diageo's Recent Distributor Termination Action in Missouri

noreply@blogger.com (Dickenson Peatman and Fogarty) — Mon, 08 Apr 2013 04:24:00 +0000

Ohio, New Jersey, North Carolina, Virginia, and a number of other states restrict a winery’s ability to terminate distributors in that state through “franchise laws.” The Virginia Wine Franchise Act, for example, prevents a winery from unilaterally amending, cancelling, terminating or refusing to renew any Virginia distribution agreement absent good cause, and good cause is very narrowly defined. A winery wishing to end its distributor agreement in violation of franchise laws may face stiff penalties. In North Carolina, violation of state franchise laws may lead to the suspension of sale of the alcohol beverage supplier’s products in that state or revocation of a winery’s permit.

In Missouri, Missouri Revised Statutes Sec. 407.413, an alcohol beverage supplier is prohibited from “unilaterally terminat[ing] or refus[ing] to continue or change substantially the condition of any franchise with the wholesaler unless the supplier has first established good cause for such termination, non continuance or change.” Good cause is limited to failure by the wholesaler to comply with the provisions of the supplier-wholesaler agreement, bad faith or failure to observe reasonable commercial standards of fair dealing, or revocation or suspension of the wholesaler’s federal permit or state/local licenses.

We usually see this alleged “breach of franchise agreement” used as the basis for a counter-claim by the purchaser of our client’s wine. Typically, XYZ Winery sells its wine to a retail establishment in a franchise state, which then doesn’t pay for the wine. When our client sues the purchaser in California state court, the purchaser counter sues for breach of the alleged franchise agreement, and will sometimes remove the case to federal court. The purchaser will then use the cost of litigation of its counter-claim to negotiate a discount on the amount owed, or a complete “walk-away” settlement.

In a recent Missouri case, however, Diageo sued its distributor in the state to terminate its distribution agreement. Diageo argues that Missouri state law should not apply to the two distribution contracts in question. Diageo relies on language in its distribution contract with Major Brands that states that the contract's terms are to be governed by Connecticut law for certain products, and New York law for certain other products. In the alternative, Diageo argues that it has good cause to terminate the agreement should Missouri law apply, claiming that Major Brands failed to devote sufficient resources to the promotion of Diageo’s products, among other things.

We will be watching this case and will report on its outcome.

For more information or assistance on distributor termination issues contact David Balter (dbalter@dpf-law.com) or John Trinidad (jtrinidad@dpf-law.com).

TTB Issues Ruling re COLAs for Beer

noreply@blogger.com (Dickenson Peatman and Fogarty) — Fri, 29 Mar 2013 07:36:00 +0000

Breweries wishing to sell beer within their home states got a break from TTB as part of the federal government's ongoing efforts to streamline the alcohol beverage label approval process. In a ruling issued on March 27, 2013 the TTB announced that there is no need for them to apply for either a certificate of label approval (COLA) or a certificate of exemption for domestically bottled beer sold solely in the state in which it is bottled. The TTB also reiterated that all beer -- whether sold in interstate commerce or solely in state -- must abide by federal labeling requirements (including the health warning statement).

This rule only applies to malt beverages. Wineries must still apply for a COLA or a certificate of exemption even if their wine is sold solely instate.

The TTBs ruling is available at: http://ttb.gov/rulings/2013-1.pdf

Contact John Trinidad at DP&F with any questions or assistance on COLA matters at jtrinidad@dpf-law.com

WIPO Symposium on Geographical Indications Wraps Up in Bangkok

noreply@blogger.com (Dickenson Peatman and Fogarty) — Thu, 28 Mar 2013 08:35:00 +0000

The biennial World Intellectual Property Organization (WIPO) Worldwide Symposium on Geographical Indications wrapped up today in Bangkok, Thailand. The 2013 Symposium was hosted by the Thailand Department of Intellectual Property.

The two-day Symposium featured eight educational sessions with over thirty speakers from across the world discussing issues related to the protection and enforcement of geographical indications, including appellations of origin for wine, and the mechanisms and procedures for such protection and enforcement in numerous countries. Presentations included the experiences of various regions known for the production of different goods including Ceylon tea from Sri Lanka, Parmigiano Reggiano cheese from Italy, Scotch Whisky from Scotland, Malaysian pepper, and Napa Valley wine from the U.S.

The Symposium also featured an exhibition of GI products from Thailand and other countries which featured various fruits, coffee, cheese, wine and handicrafts, including a live demonstration of the historic method of production of the silk threads used to make Thai silk.

The Symposium was attended by over 400 participants and was opened by Her Royal Highness Princess Sirindhorn of Thailand. The Symposium serves as an invaluable forum for the exchange of information and ideas related to the protection of appellations worldwide and the promotion of agricultural products, such as wine.

Scott Gerien of Dickenson, Peatman & Fogarty was an invited speaker and presented on the issue of use of geographical indications alongside trademarks and the Napa Valley story in developing a recognized brand in an appellation of origin.

More information on the Symposium can be found at the WIPO web site:

http://www.wipo.int/meetings/en/2013/wipo_geo_bkk_13/index.html

TROs and Preliminary Injunctions: The Wine Advocate, Inc. v. Antonio Galloni

noreply@blogger.com (Dickenson Peatman and Fogarty) — Fri, 22 Mar 2013 21:38:00 +0000

Much has been written about the lawsuit filed by Robert Parker's company, The Wine Advocate, Inc. ("TWA"), against Antonio Galloni, specifically on the allegations of fraud, defamation and breach of contract. But buried on page 21 of this 26 page complaint may be one of the most intriguing aspects of this action: a request by TWA for a temporary restraining order ("TRO") and preliminary injunction to enjoin Galloni from "publishing any and all articles and/or tasting notes relating to the Sonoma, Brunello, Barolo and Burgundy wines, and enjoining Defendants' use of Plaintiff's confidential subscriber information …." Should the Court grant TWA a preliminary injunction, then any articles or tasting notes from Galloni's visits to wineries in Sonoma and elsewhere may remain locked up until this case is resolved, which may take multiple months, if not years.

TROs and preliminary injunctions are forms of injunctive relief. They are meant to preserve the status quo by (typically) preventing a party from taking certain actions that would cause irreparable harm to the party seeking injunctive relief. TROs and preliminary injunctions are considered "one of the most drastic tools in the arsenal of judicial remedies."

A party seeking a TRO must file an application requesting that the court preserve the status quo until the court has a chance to hold a hearing on the preliminary injunction motion. If issued, a TRO remains in place until the preliminary injunction hearing date. Time is usually of the essence: a court may conclude that a party that delayed in filing an application for a TRO has failed to demonstrate the urgent need for such extraordinary relief. If the moving party is able to prevail at the preliminary injunction hearing, the court will issue an order prohibiting certain actions by the non-moving party until the case is resolved.

Preliminary injunctions are considered an "extraordinary remedy," and accordingly, moving parties must meet a high standard in order to prevail. A party seeking injunctive relief must show likelihood of success on the merits of its claim and irreparable harm in the absence of a preliminary injunction. The court will also take into consideration the hardship on defendants should an injunction be granted

TWA may not only seek an injunction to prevent Galloni from publishing the tasting notes, but may also demand a court order "forcing" him to produce those notes to TWA. This constitutes a request for "mandatory injunctive relief" - i.e., a court order directing specific conduct by the non-moving party. Courts exercise heightened scrutiny in such situations.

The complaint suggests that TWA will seek a TRO and preliminary injunction in the near future. Indeed, TWA is free to move the court for a TRO at anytime, even before the 21-day time period for defendants to file a formal answer to the complaint has expired. And given the need to show likelihood of success on the merits, TWA will need to provide evidence to support its allegations of wrongdoing and harm. In short, should TWA follow through with its stated plan to seek a TRO and preliminary injunction, it will need to present a preview of its case-in-chief.

A PDF of the complaint is available here: The Wine Advocate, Inc. v. Antonio Galloni.

For more information, please contact John Trinidad (jtrinidad@dpf-law.com) or John Heffner (jheffner@dpf-law.com).

The New Form I-9 Has Arrived!

noreply@blogger.com (Dickenson Peatman and Fogarty) — Mon, 11 Mar 2013 19:55:00 +0000

The U.S. Citizenship and Immigration Services (USCIS) posted its new Form I-9, Employment Eligibility Verification on its website Friday, March 8, 2013. The form is available for immediate use by employers. Employers should begin using it as soon as possible, but if they need to update their internal procedures prior to implementation, employers may continue to use other previously accepted revisions until May 7, 2013. After that date all employers must use the new document for each new employee hired in the United States.

The revised Form I-9 features new fields and a different format designed to reduce errors. The instructions included with the form are quite extensive, and provide a more detailed explanation of the information employees and employers must provide in each section. The new I-9 Form is available here for your review and use: http://www.uscis.gov/files/form/i-9.pdf.

With questions about the new Form I-9 and all things employment-law related, email or call Greg Walsh at gwalsh@dpf-law.com or Jennifer Phillips at jphillips@dpf-law.com.

Employers: New FMLA Posting Required March 8, 2013

noreply@blogger.com (Dickenson Peatman and Fogarty) — Thu, 07 Mar 2013 06:55:00 +0000

The United States Department of Labor (“DOL”) has implemented new rules concerning the Family Medical Leave Act (“FMLA”) Regulations. All covered employers (an employer with 50 or more employees within a 75 mile radius) will need to post the DOL’s new posting containing the rules as of March 8, 2013. You can obtain the required posting here: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.

The most important notable change is that servicemember care leave is now available for employees to care for family members who are covered veterans undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred or aggravated in the line of duty on during active duty. A covered veteran is one who was discharged or released under conditions other than dishonorable within the five-year period preceding the date the employee first takes leave to care for the veteran.

For more information about the new rules you can contact Jen Phillips at contact jphillips@dpf-law.com or consult the DOL’s fact sheet at http://www.dol.gov/whd/fmla/2013rule/fs-general.htm.

March 6th Presentation on Trademark Best Practices

noreply@blogger.com (Dickenson Peatman and Fogarty) — Thu, 28 Feb 2013 08:44:00 +0000

Scott Gerien, head of Dickenson, Peatman & Fogarty's Intellectual Property Department, will be appearing on a panel with Judith Schvimmer, Vice President and Legal Counsel at Jackson Family Enterprises, on "Trademark Protection" on March 6 at 12:00 PST. The presentation will be a TeleBriefing sponsored by Law Seminars International

In this 90-minute TeleBriefing, the panel of speakers will address current best practices for trademark selection, use, maintenance and protection. This is a must-attend TeleBriefing for in-house counsel, outside general counsel and corporate executives who are required to handle trademark related issues from time to time. Given the experience of the panel, the presentation will also address trademark issues related to the wine industry.

The link to the online brochure can be found here: http://www.lawseminars.com/seminars/13TRADETB.php

LSI will offer a discount of $25 off of the regular registration rate to LexVini readers. Please contact LSI with any questions (206) 567-4490.

Alcohol Beverage Licenses as Assets in Debt Collection

noreply@blogger.com (Dickenson Peatman and Fogarty) — Wed, 27 Feb 2013 05:11:00 +0000

A recent US Bankruptcy Court case from the Middle District of Florida highlights the pitfalls of attempting to value certain assets, including a bar and liquor license, without expert assistance (Zaslavsky v. Smith (In re Smith) January 31, 2013, 2013 Bankr. LEXIS 434). In this matter, plaintiff creditor brought an adversary proceeding against defendant bankruptcy debtor alleging intentional concealment of assets based on debtor’s self-estimated value of his interest in a bar, the real property it was located on and its liquor license, as being “zero” in what appears to have been a pro per bankruptcy filing (i.e., the debtor representing himself without a lawyer).

Plaintiff creditor had sold his interest in the bar, the real property it was located on and its liquor license to the debtor and carried back a note, which was alleged to have been secured by the real property and the liquor license. Debtor’s self-valuation of the bar, the real property and liquor license improperly deducted the value of various liens and other encumbrances, which plaintiff claimed established fraudulent intent barring discharge. The Bankruptcy Court disagreed, finding that while debtor’s self-valuation was incorrect, it resulted from an honest mistake and thus fraudulent intent was not present. The debtor’s discharge was ultimately approved, likely after amended bankruptcy schedules were filed. Apparently, given the lack of bankruptcy court objection, a liquor license can properly be used as collateral for a secured transaction in Florida, as opposed to California where such use is statutorily prohibited.

For further assistance or questions on debt collection matters contact David Balter at dbalter@dpf-law.com

Vineyard Purchases: Avoid Attorney Fees, Get a Survey

noreply@blogger.com (Dickenson Peatman and Fogarty) — Mon, 25 Feb 2013 07:47:00 +0000

All too often purchasers of real property make assumptions about the extent of land included in their purchase, relying on visible landmarks such as tree lines and existing fences. Despite the opportunity, and many times admonitions, to engage a land surveyor prior to the consummation of a purchase, prospective buyers often times wait until after the fact, or not at all, to conduct a survey. In doing so, the buyers may be setting themselves up for serious consequences that translate into large dollar expenditures.

Let’s assume that you’ve purchased land on which you intend to plant a vineyard. Let’s further assume that there is an existing fence that you were either told or presumed was the common boundary between you and your adjacent neighbor. Now let’s go one step further and assume that you have gone to the time, trouble and expense of assessing the soil, contracting for vines, installing the trellising and irrigation and planting the vines. All is proceeding along until the adjacent land is sold, the new neighbor has a survey performed, and several rows of your maturing vines are now indisputably located on your neighbor’s property. What recourse do you have? California law provides for use and ownership interests in the lands of others provided that certain conditions are satisfied.

You may claim a possessory (versus ownership) right if you have used the land in question openly and notoriously, under claim of right (without permission), for five continuous uninterrupted years, hostilely (figuratively speaking) to the true owner of the property in question. If you personally have not used the land in question for five continuous years, you may be able to “tack” your predecessor’s time of possession onto your actual possession to satisfy the five-year time frame. Assuming you can unequivocally establish these five elements, you may claim a prescriptive easement in the property; a right to use the property distinct from ownership of it.

If you can establish one more element, i.e., that you paid real property taxes on the land in question for five continuous years, you may be able to claim exclusive possession, i.e., ownership, of the property under the theory of adverse possession. You have the burden of proving that you not only used the property openly and notoriously, under claim of right, for five continuous uninterrupted years, hostilely to the true owner, but also that you paid the assessed taxes on the property.

Conclusively establishing your claim of use under a prescriptive easement or ownership under adverse possession often times requires a lawsuit to quiet title, which can be an expensive proposition.

When buying land for a vineyard or even planting a vineyard on land you believe have owned for a while, engaging a professional land surveyor to confirm the exact boundary line may be the proverbial ounce of prevention needed to avoid costly issues in the future.

For more information on real estate issues contact Delphine Adams at dadams@dpf-law.com

Wine Industry Lawsuits: How to Avoid Them

noreply@blogger.com (Dickenson Peatman and Fogarty) — Fri, 22 Feb 2013 05:07:00 +0000

No one expects to have to go to court when they start a business deal or venture, or when they plant a vineyard or purchase real estate, but in today’s world no industry is free from lawsuits, particularly not the wine industry. Disputes over grape purchase agreements (duration, termination, quality standards, etc.), vineyard development agreements (quality of vines, planting and maintenance, and sufficiency of site evaluation and preparation, etc.), wine storage agreements (condition of wine, losses, damage to wine, etc.), custom crush agreements (compensation, quality control, etc.), real property matters (title, ownership, boundaries, easements, etc.), and even employment relationships (statutory requirements, executive agreements, workplace safety, etc.) can rise to the level of a lawsuit involving the smallest or largest members of the wine community and costing from tens of thousands to hundreds of thousands of dollars. All too often, however, it is not until the fighting begins that the parties and their attorneys look back and see where the dispute could have been avoided or at least how the parties could have better protected themselves before the dispute arose.

Simple measures are usually the most effective. For example, many people don’t review their written agreements until a dispute arises, and then they often find that the paperwork does not read like they recalled it read, or they find that the agreement is ambiguous on a matter that was not an issue until circumstances changed. Instead of shelving your paperwork once it’s signed, there is tremendous value in periodically reviewing written agreements to confirm that they match your understanding of a deal, as well as to confirm that the agreement is being correctly followed. Such a review can, but need not, involve the assistance of counsel. At the very least, such reviews help keep everyone on track while they are still getting along, and when things are not on track, the parties can usually make mid-course corrections in the paperwork or their conduct (or both) without much debate or fanfare because there is no dispute pending. Once a dispute arises, however, such corrective measures are more difficult to achieve.

It is even more important to take such a proactive approach in cases that do not involve written agreements because differences in recollection often cloud the dispute resolution process once a legal battle has begun.

Likewise, where property issues are involved, it is better to find out about your state of title before you are in a dispute with a neighbor. Such early knowledge not only presents the opportunity to find a solution with your neighbor while everyone still gets along (or at least has not been antagonized by the existence of dispute), but it also allows you to get properly informed as to what you should or should not do to protect your property rights in the absence of a negotiated solution since many of the legal rules involved with property disputes are counter-intuitive to non attorneys.

In short, sometimes you need to look back to move forward in the safest way.

For more information or assistance on litigation matters, and how to prevent them, contact Paul Carey at pcarey@dpf-law.com

DP&F Reception at Unified

noreply@blogger.com (Dickenson Peatman and Fogarty) — Mon, 28 Jan 2013 05:33:00 +0000

Dickenson, Peatman & Fogarty will be hosting a reception at Unified on Wednesday, January 30th from 6:30-9:30 at Downtown & Vine located at 1200 K Street #8 in Sacramento. We invite all of our Lex Vini readers to join us if you happen to be in Sacramento for Unified. Also stop by our booth on the main floor to meet one-on-one with our attorneys in attendance.

To RSVP for our reception and put it into your calendar follow this link:

http://www.paperlesspost.com/events/3256585-46f74ae5/replies#envelope/front/1

We hope to see you there!

Filing Period for H-1B Visas to Open April 1st

noreply@blogger.com (Dickenson Peatman and Fogarty) — Thu, 24 Jan 2013 07:13:00 +0000

From time to time we like to post guest blogs from our colleagues with information that might be useful to our clients. The below post is from Melissa Harms, an immigration law attorney based in Marin. Melissa can be reached at mharms@harms-law.com with any questions or inquiries.

The FY2014 H-1B cap filing period will open 04/01/2013 (for a 10/01/2013 start date). The H-1B, “specialty occupation” visa is the most commonly used visa for employment purposes. To qualify for an H-1B visa, the position must require the theoretical and practical application of a body of highly specialized knowledge. To approve an H-1B application, the USCIS requires the position to require a Bachelor’s level degree (or the equivalent) in a specialized field and the foreign national to possess a Bachelor’s degree (or equivalent) in this field.

As you may know, there is a limited number of H-1B slots each year (known as the H-1B quota). Currently, there are 65,000 slots afforded to foreign nationals with a Bachelor's degree or higher and 20,000 afforded to U.S. Master's degree holders. In prior years, the quota was reached within days of April 1. Last year, the quota remained open from April 1, 2012 until June 11, 2012. There is no telling what will occur this year as the results are often unpredictable but it is anticipated that the cap will be reached within a month or less. Accordingly, we plan to file all H-1B petitions on March 29, 2013 for an April 1, 2013 arrival at the immigration service. This leaves under 3 months to prepare these petitions. Please contact our office as soon as possible if you'd like to file an H-1B petition under this year's cap. We would be pleased to assist you with this process.

New York State Liquor Authority to Examine Third Party Marketing

noreply@blogger.com (Dickenson Peatman and Fogarty) — Fri, 11 Jan 2013 18:58:00 +0000

The New York State Liquor Authority ("NY SLA") is holding a special meeting on January 17, 2013 to discuss the role of third party providers in internet advertising and sales. This meeting is the result of a request from ShipCompliant for a declaratory ruling that its MarketPlace Platform does not violate New York state laws or NY SLA rules.

Wineries as well as third party marketers should closely follow the result of this meeting, as it will impact their ability to market wine to New York state residents. These same entities have until end of the day on January 11, 2013 to submit comments to the NY SLA. Interested parties can attend the meeting, which is scheduled to start at 1pm at the NY SLA office in New York City (317 Lenox Avenue, New York, NY).

According to ShipCompliant and Wines & Vines presentation, New York is among the top three states for direct to consumer wine sales.

For more information on third party providers and third party marketing, please contact John Trinidad at jtrinidad@dpf-law.com.

California Increases Penalties for Farm Labor Violations

noreply@blogger.com (Dickenson Peatman and Fogarty) — Fri, 11 Jan 2013 07:44:00 +0000

On Jan 1, 2013, a new law came into effect in California that allows for serious civil penalties -- fines of up to $50,000 -- to be levied against a farm labor contractor (FLC) for license violations. The law amends Section 1683 of the California Labor Code, and provides teeth to enforcement agents. Previously, the Labor Commissioner was restricted to referring license violation cases for criminal misdemeanor prosecution, an action rarely pursued. Now that AB 1675 is on the books, we’ve been told that the Labor Commissioner plans to specifically target agriculture as one of three primary enforcement areas for 2013. Its on-the-ground division, the Bureau of Field Enforcement (“BOFE”), has recently tripled the number of field agents in the Northern CA region (from 1 to 3). BOFE officers will be going to businesses unannounced to conduct audits.

Under California law, a vineyard management company is almost always considered an FLC. Vineyard management companies must comply with California laws regulating FLCs, including registration and licensing. Growers or owners who engage a vineyard management company/FLC have an affirmative statutory obligation to check the license and retain a copy for at least three years following the termination of services.

For more information on the new law or assistance with other grower issues, please contact Caroline Boller at cboller@dpf-law.com

2013 Employment Reminders (Happy New Year!)

noreply@blogger.com (Dickenson Peatman and Fogarty) — Thu, 03 Jan 2013 08:56:00 +0000

As of January 1, 2013 most California employers must comply with a handful of important new laws. Here are two that should top your list:

1. Commission Agreements: Employers must have a written and signed commission agreement for all employees who receive any part of their compensation in the form of a commission. (Labor Code §2751)

2. Personnel File Requests: Employers are now required to provide copies of personnel files to current and former employees. Employers are also required to have a form that current and former employees can use to request a review and/or copy of their records. (AB 2674, revised Labor Code §1198.5)

For questions about compliance with these laws or the handful of other changes in employment law for 2013, please contact Greg Walsh (gwalsh@dpf-law.com) or Jennifer Phillips (jphillips@dpf-law.com) in DP&F’s Labor& Employment Group (707.524.7000).

Dickenson, Peatman and Fogarty Adds Five Experienced Attorneys

noreply@blogger.com (Dickenson Peatman and Fogarty) — Tue, 18 Dec 2012 20:54:00 +0000

We are happy to announce that we have added five new attorneys to our alcohol beverage, land use, intellectual property, business, and trust and estates departments over the past six months. The addition of these experienced attorneys will help us continue to serve our clients in the wine industry.

For more information, please see the recent article in the North Bay Business Journal.

Food Facilities Registration for Alternating Proprietors and Mobile Bottling Units

noreply@blogger.com (Dickenson Peatman and Fogarty) — Thu, 13 Dec 2012 03:16:00 +0000

In October, we published a blog post regarding the 2002 Bioterrorism Act which required "food facilities" to register with the FDA. Given some of the uncertainties regarding what constitutes a "food facility," a follow up post seemed appropriate.

In 2002, Congress passed the Public Health Security and Bioterrorism Preparedness and Response Act (often referred to simply as the "Bioterrorism Act"), directing the FDA to take steps to protect the general public from potential terrorist attacks on the nation's food supply. Part of that law requires all owners, operators, or agents of facilities that manufacture, process, pack, or hold food for consumption in the U.S. to register with the FDA. The food facilities registration can be completed online and there is no registration fee.

The regulations define "facilities" as "any establishment, structure, or structures under one ownership at one general physical location... that manufactures/processes, packs, or holds food for consumption in the United States." 21 C.F.R. § 1.227(a)(2). Food includes alcohol beverages, such as wine. 21 C.F.R. § 1.227(a)(4)(ii).

In drafting the regulations, the FDA anticipated the potential of two or more owners sharing the same physical space. “A facility may consist of one or more contiguous structures, and a single building may house more than one distinct facility if the facilities are under separate ownership.” 21 C.F.R. § 1.227(a)(2). Thus, each alternating proprietor at a host winery must register even if the host winery has already registered.

The FDA also took into account mobile facilities that travel to multiple locations for the processing, packaging, or holding of food, unless the vehicle is being used “to hold food only in the usual course of business as carriers.” 21 C.F.R. § 1.227(a)(2). Therefore, mobile bottling units are considered facilities for the purpose of the 2002 Bioterrorism Act, and should be registered with the FDA.

Please contact us if you have any questions regarding the registration process.

Is a COLA necessary to Establish Lawful Use of a Wine Trademark?

noreply@blogger.com (Dickenson Peatman and Fogarty) — Tue, 27 Nov 2012 09:31:00 +0000

In the United States, trademark rights may be established through the lawful use of a mark in association with goods in commerce. When one is selling a product that is not subject to government regulation, such as t-shirts, it is fairly simple to make lawful use of a mark in commerce; you label the t-shirt with your trademark and you then offer it for sale via the Internet, a retail store, or some other sales outlet. However, when it comes to products that are regulated by the government, such as wine, there is the additional question of whether a use is lawful if the seller of the wine has not complied with all of the government regulations necessary to sell the product. For instance, the Alcohol and Tobacco Tax and Trade Bureau (“TTB”) requires that before a wine may be released from bond or Customs a party must first obtain a Certificate of Label Approval (“COLA”) for the label for such wine. So, if a party has not obtained a COLA when it first sells its wine, can that party establish lawful use of the mark in commerce as of that date of first sale absent the COLA?

This issue was recently addressed in a proceeding before the U.S. Patent and Trademark Office (“USPTO”) Trademark Trial and Appeal Board (“TTAB”) in the case of Churchill Cellars, Inc. v. Brian Graham, Opp. No. 91193930 (TTAB 2012). Following is a link to the opinion: http://ttabvue.uspto.gov/ttabvue/ttabvue-91193930-OPP-23.pdf

In the Churchill case the TTAB found that even though the party claiming rights in the trademark at issue had not first obtained a COLA before making use of the mark on wine in commerce, such use was not necessarily unlawful so as to preclude the establishment of trademark rights. The TTAB noted that it is not in a position to evaluate whether a party is in compliance with the regulatory schemes of other government agencies and absent some finding from a Court or an administrative agency such as TTB, TTAB cannot make a determination of whether the administrative failure to obtain a COLA made the use of the mark on the wine illegal. The TTAB further noted that there was no evidence that the party would have been denied a COLA had it applied for one, and in fact a COLA was subsequently obtained for the label featuring the mark by the producer of the wine. Therefore, TTAB concluded that it would not deny the party its claim of trademark rights simply because it failed to follow an administrative procedure.

This is good news in the sense that a party cannot be denied its trademark simply because it did not obtain a COLA. However, it can hardly be recommended that a party attempt to make use of a mark before obtaining a COLA simply to establish trademark rights. Had the party opposing the trademark in this case raised the issue with TTB of the other party’s failure to obtain a COLA it is possible that there may have been a decision from TTB finding the sale of the wine to be unlawful thereby providing the USPTO TTAB with a basis for finding that the use of the mark was also unlawful. Furthermore, the sale of wine without a COLA could result in significant penalties from TTB which could have a much more significant impact on a winery’s overall business. Thus, while this decision may be positive from a trademark rights perspective, it should not act to encourage wineries to sell wine without a COLA simply to establish trademark rights.

From a legal analysis perspective, it should also be noted that this decision is precedent in the USPTO where decisions are made as to registration of trademarks. However, the USPTO has no jurisdiction to stop a party from using a mark. Such jurisdiction rests exclusively with the state and federal courts. Furthermore, the decision of the Ninth Circuit Court of Appeals in the case of CreAgri, Inc. v. Usana Health Services, Inc., 474 F.3d 626 (9^th Cir. 2007) took an arguably broader view of the unlawful use issue in the context of labeling requirements for dietary supplements under the Food, Drug and Cosmetic Act such that it could be argued that the Ninth Circuit could reach a decision different than that reached by the TTAB in the Churchill Cellars case.

Therefore, it seems apparent that it is still in a winery’s best interest to obtain a COLA before selling a wine rather than selling the wine without the COLA simply to establish trademark rights. The better course of action to quickly establish trademark rights in a wine brand is to file an intent-to-use trademark application with the USPTO which establishes rights as of the day of filing without having to first use the mark in commerce, lawfully or unlawfully.

For any questions or assistance on trademark matters contact Scott Gerien at sgerien@dpf-law.com

Ethics Legal Education Opportunity from the Cal Bar, November 9th in Yountville

noreply@blogger.com (Dickenson Peatman and Fogarty) — Thu, 01 Nov 2012 05:31:00 +0000

The State Bar of California

Agribusiness Committee

Of the

Business Law Section in conjunction with:

LaRiviere, Grubman & Payne, LLP

and

Dickenson, Peatman & Fogarty

proudly presents the
2012 Winery & Vineyard Tour

Hotel Bardessono

6526 Yount Street
Yountville, California

FRIDAY, NOVEMBER 9th

10:00 AM to 3:00 PM

Featuring:

GOT ETHICS?: The Perils of Hidden Data in your Legal Practice

2.0 units of Continuing Legal Education, including 1.0 unit of Ethics credit sponsored by LaRiviere, Grubman& Payne, LLP

Join us for the fifth annual Winery Tour and CLE of the Business Law Section’s Agribusiness Committee! This year’s event will feature complimentary wine and three-course food pairing, hosted at the luxurious Hotel Bardessono, courtesy of our friends at Hill Family Estate. Attendees will enjoy wine education and an exclusive tour and viticulture lesson at the onsite vineyard, followed by optional winery tour of the Laird Family Winery facility just a few miles away.

LGP attorneys and featured speakers Matthew Bogosian and John Nielsen will present “Got Ethics?: The Perils of Hidden Data in Your Legal Practice” for 2 hours of CLE, with one unit of Ethics credit.

This program is $40.00for BLS members, $60.00 for non-BLS members, and includes lunch. Space is limited to the first 30 registrants.

RSVP to Chris Passarelli (cpassarelli@lgpatlaw.com or 831-915-8861) by Monday, November 5th, 2012. Make your check payable to LaRiviere, Grubman& Payne, LLP., and mail to the address below.

Christopher J. Passarelli
LaRiviere, Grubman & Payne, LLP
P.O. Box 3140
Monterey, California 93942
Phone: (831) 915-8861
Fax: (831) 649-8835
cpassarelli@lgpatlaw.com

Wineries and Vineyards Need Not be Frightened by Bioterrorism Act Rules and Requirements

noreply@blogger.com (Dickenson Peatman and Fogarty) — Tue, 23 Oct 2012 16:41:00 +0000

Is your winery or tasting room registered under the Bioterrorism Act? If so, did you know that this year you are required to renew your registration? If not, are you sure you’re not required to register? Despite its sinister-sounding name, the Bioterrorism Act is nothing to fear. Let’s review some of the basics:

1. What is the Bioterrorism Act? According to Federal Register Interim Final Rule - 68 FR 58893, the purpose of Bioterrorism Act registration is to enable the FDA to act quickly in responding to a threatened or actual terrorist attack on the U.S. food supply by giving FDA information about facilities that manufacture/process, pack, or hold food for consumption in the United States. Additionally, in the event of an outbreak of foodborne illness, such information will help FDA and other authorities determine the source and cause of the event, and quickly notify the facilities that might be affected by the outbreak.

2. Who is required to register? In general, any facility engaged in manufacturing, processing, packing, or holding food for consumption in the United States is required to register. Note that “food” includes alcoholic beverages. Therefore, wineries, custom crush facilities and warehouse facilities that meet the definition will need to register.

3. Who is exempt from registration? Since the rules are pretty broad and complex, we’re just going to focus on the likely exemptions for winery and vineyard related businesses here.

               A.            Farms don’t have to register unless they are also production facilities. This exempts many grape growers from the registration requirements.

               B.            Tasting rooms don’t have to register if they sell food products directly to consumers as their primary function. The FDA definition of “consumers” does not include other businesses. In order to calculate the “primary function” of a business, the test is whether the dollar value in sales of food products sold directly to consumers exceeds the value of sales to all other buyers, see: http://www.fda.gov/Food/FoodDefense/Bioterrorism/FoodFacilityRegistration/ucm081637.htm#IIId. In other words, if you’re selling most of your wine directly to consumers out of your tasting room then you are considered a “retail food establishment” and don’t need to register. However, if your tasting room is on-site at the winery, the facility will need to register, since it will be considered a “mixed-use” facility.

4.            When do I need to register? If you are required to register you should have done so already. The registration requirements have been in place since 2003. Registration is a fairly straightforward process and can be completed online: http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/RegistrationofFoodFacilities/OnlineRegistration/ucm125055.htm

If you are already registered, it’s time to re-register! Registration renewal is required under 21 U.S.C. § 350d(a)(3). Specifically, during the period beginning on October 1 and ending on December 31 of each even-numbered year, each registrant must renew their registration.

5.            How do I register? You can mail in the questionnaire, or submit it online. Information on how and when to register can be found at: http://www.fda.gov/Food/FoodSafety/FSMA/ucm314178.htm?source=govdelivery. While you may have read that renewal registrations were not yet open, the FDA site has recently begun accepting renewals.

For assistance with the registration process or with other questions related to winery or grower issues, please contact Caroline Boller at cboller@dpf-law.com

Insight into TTB's Approach to AVAs: The Inwood Valley AVA

noreply@blogger.com (Dickenson Peatman and Fogarty) — Wed, 17 Oct 2012 06:32:00 +0000

Since the establishment of the Augusta AVA in 1980, ATF, and now TTB, has varied its approach to executing its legislatively delegated task of establishing American Viticultural Areas (AVAs). In early 2011, TTB amended the AVA rules entirely. With the recognition of the Inwood Valley AVA, effective as of October 15, 2012, we gain insight into TTB’s process and priorities when reviewing petitions to form new AVAs.

As originally conceived and petitioned to TTB, the Inwood Valley AVA was to be a 32,647 acre viticultural area with 60 acres of vines planted in 4 vineyards. TTB pushed an amendment prior to publishing the Notice of Proposed Rulemaking (NPRM), which reduced the acreage to 28,298 acres and used distinctive soil types to reform the boundaries. TTB sought to remove areas not containing viticultural activities from the AVA. TTB received four comments to the NPRM- 3 supported the formation of the new AVA and 1 opposed the name “Inwood Valley” on the ground that labels with the “Inwood” name would be unable to add the word “Valley” to a future label without satisfying the 85% grape source requirement. Because no existing labels would be impacted by forming the AVA, TTB dismissed the objection.

After the comment period closed, TTB received a comment from a vineyard owner just outside the proposed AVA boundary who wanted to be included. TTB found that a “slight modification to the boundary to include the vineyard at issue is consistent with the distinguishing features evidence submitted….” As a result, Inwood Valley AVA, as established, is a 28,441 acre viticultural area with 62.5 acres planted to wine grape vines or 0.2% of the AVA planted for viticulture. Although in response to a supportive comment to the NPRM, TTB noted that “Whether or not, and to what extent, there is any economic benefit from the approval of a viticultural area is not a factor that TTB considers in determining whether or not to approve a petition for a viticultural area,” it seems clear that TTB does consider whether the formation of an AVA will disenfranchise wine industry participants. The Federal Register excerpt for the establishment of the Inwood Valley AVA may be found at the following link:

http://www.gpo.gov/fdsys/pkg/FR-2012-09-13/pdf/2012-22595.pdf

For more information or assistance on petitions for establishment of AVAs contact Carol Kingery Ritter at ckritter@dpf-law.com