The Trademark Trial and Appeals Board and the USPTO don’t work in a vacuum and this recent opinion over a company’s attempt to register BIG SIX for wine shows just how well they’re doing in researching and protecting common vernacular so alcohol manufacturers can continue to utilize common terms.  In this case, the applicant, Plata Wine Partners, LLC, sought to register BIG SIX for “wine” (Class 33). The examining attorney refused registration on the grounds that BIG SIX “is a term of art in the wine industry” so it was merely descriptive of the applicant’s goods. The examining attorney…

You probably know it’s headed downhill as a party in a lawsuit when the court is comparing your arguments to Al Capone’s. That’s what happened in this recent FLSA case out of the 10th Circuit – Kenney v. Helix TCS, Inc., 18-1105 (10th Circ.). As outlined below, however, case law is clear that employers are not excused from complying with federal laws because of their other federal violations. … The employers’ argument to the contrary rests on a legal theory as flawed today as it was in 1931 when jurors convicted Al Capone of failing to pay taxes on…

You’ll recall this is the second appeal in this matter where a group of broadcasters, along with a bar, and a grape farmer brought a First Amendment challenge to Missouri’s prohibitions on truthful alcohol advertising.They argued that Missouri’s laws and regs restrict the manner and methods and truthful content of their alcohol advertising. They won in the district court and the state appealed arguing all along that tied-house restrictions trumped the First Amendment and mandated restrictions on alcohol advertising – apparently forgetting or ignoring cases like Reuben and 44 Liquormart. This is another of those cases showing how states…

We wrote about the importance of the The Secure and Fair Enforcement Banking Act of 2019 yesterday. You can read that entry here.  The importance of the SAFE Banking Act to paving the way for providing comfort to financial institutions in turn assuring they will provide services to the cannabis industry as well as giving other third parties safe harbor for the proceeds from transactions with cannabis-related businesses. After yesterday’s vote, Representative Perlmutter – the chief sponsor, had this to say about the engines of progress:  “If someone wants to oppose the legalization of marijuana, that’s their prerogative, but…

In Polk, the plaintiff sued the defendants to obtain his ownership and profits from a cannabis growing business they had allegedly started together. When they started the business under Washington state’s newly enacted recreational marijuana laws back in 2013, the plaintiff could not disclose his ownership in the business given his criminal history and restrictions on obtaining a license with such a history. Plaintiff alleges the parties initially agreed to a 30/30% split between plaintiff and defendant founder and that the remaining 40 percent of the cannabis cultivation business would go to investors. Until 2015, plaintiff worked in the business,…

A three judge panel of the 5th Circuit ended Walmart’s recent Commerce Clause triumph. Overturning and remanding for further fact-finding, the district court’s finding that a Texas ban on public companies owning liquor stores was enacted with a discriminatory intent meant to keep out-of-state interests from holding in-state liquor licenses. You can read the full opinion here.  Walmart has requested a rehearing en banc and the Texas Liquor Store lobbying group looking to protect its hold on in-state monopolized licenses has filed a request for the same three judge panel to re-hear the case and find in its favor…

A mischaracterization of what a Michigan statute regulates and what rights of a winery/cidery it impacts created a disappointing result for Michigan winery/cidery arguing that federal law allowing for bonded transfer of wine and cider preempted the state’s restrictions on the winery/cidery’s acceptance of wine and cider in bond for eventual sale to consumers. We initially covered this case when it was filed back in July. You can read that entry here for the background and arguments asserted in the complaint and the winery/cidery’s requests for a temporary restraining order and preliminary injunction. The winery/cidery wanted to accept the bonded…

In a blow against some restrictive trade practice regulations Washington’s Court of Appeals recently struck several rules of the Washington State Liquor and Cannabis Board as overly broad and unsupported by the state’s liquor statute. The background for the challenge was the 2012 amendment to Washington’s liquor laws which ended the state’s monopoly on the sale of liquor. The enacting legislation started with the following noble intent statement: The people of the state of Washington, in enacting this initiative measure, find that the state government monopoly on liquor distribution and liquor stores in Washington and the state government regulations that…