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Trademark Attorney for Breweries, Distilleries and Wineries: Clear the Name Before the Label

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A trademark attorney for a brewery, distillery or winery clears the name against existing marks, picks the right classes, usually Class 32 for beer, Class 33 for wine and spirits and Class 43 for a taproom or tasting room, and files the federal application with the USPTO. At Citrus Legal, that work starts with Seed, a $650 flat-fee clearance search and written opinion, before the name goes on a label, a can wrap or a sign.

Alcohol brands carry one more layer than most food brands: a federal label approval process that looks a lot like a name check and isn't one. Here's what I look at for this industry.

What a trademark attorney checks for a brewery, distillery or winery brand

TTB label approval is not trademark clearance. Before most beer, wine and spirits labels go to market, they go through the Alcohol and Tobacco Tax and Trade Bureau for a Certificate of Label Approval, the COLA. Founders often read an approved COLA as a green light for the name. It isn't. TTB's own labeling training for industry says it plainly: "TTB's approval of a COLA does not constitute trademark protection." TTB reviews the label against its labeling rules. It doesn't search the USPTO register, and it doesn't tell you whether another brand has better rights to the name. You can hold an approved label and still get a demand letter.

Beer, wine and spirits are often treated as related goods. Beer sits in Class 32 and wine and spirits sit in Class 33, and founders take the different class numbers as separation. The courts haven't. In In re Chatam International, the Federal Circuit upheld a refusal of JOSE GASPAR GOLD for tequila over an earlier registration of GASPAR'S ALE for beer, agreeing that tequila and beer or ale are "closely related in a commercial sense." The court relied on an earlier case, In re Majestic Distilling, which found malt liquor and tequila related because both are alcoholic beverages sold "in many of the same channels of trade to many of the same consumers." So a distillery's name can be blocked by a brewery's registration, and the other way around.

There's no automatic rule, though. The TMEP, the manual USPTO examining attorneys follow, notes a case where the Office failed to show that wine and caffeinated vodka were related. It comes down to evidence, which is why the search has to cover both classes, whichever one you sell in.

A taproom and a beer aren't automatically the same thing. If you pour on site, you're also offering a service. The TMEP says the relatedness of food or drink products and restaurant services "may not be assumed," and the examiner needs "something more" than similar marks used for each. In In re Coors Brewing, the Federal Circuit called the overlap between the sources of restaurant services and the sources of beer "de minimis." But the TMEP also says relatedness is generally recognized between beer and brewpub services. A taproom that pours its own beer under its own name sits much closer to the beer than a general restaurant does. I look at both lanes.

Beer names are crowded, and you name a lot of them. A winery may name a handful of wines. A brewery can release a new beer every few weeks, and every can is its own possible conflict. Style words, hop words and local landmarks get used over and over: hazy, juicy, pale, tide, pier, gulf. When a word is everywhere in your field, two things happen. It's harder to get a registration that reaches very far, and it's harder to stop the next brewery from using the same word. The article on how different a name has to be explains how small differences get weighed. In practice, I suggest clearing the brewery name first, then the flagship beers you plan to keep for years, and treating one-off seasonals as a business decision.

The label and the application should match. TTB's training defines the brand name as the "Name under which the malt beverage is marketed." The name on your COLA, the name on your trademark application and the name on the shelf should be the same name. If the label says "Gullhaven Brewing" and the application says "Gullhaven Beer Co.," you've made your own record harder to read for no reason. (Gullhaven is invented for this article.)

The classes

  • Class 32 covers "Beers," along with non-alcoholic drinks, mineral and sparkling waters and fruit juices. A brewery's beers go here, and so would a non-alcoholic line or a craft soda.
  • Class 33 covers "Alcoholic beverages, except beers." Wine, spirits and cider land here.
  • Class 43 covers "Services for providing food and drink," and the Nice list includes "bar services." That's the taproom, the tasting room or the cocktail bar at the distillery.
  • Class 40 is the one people miss. The Nice Classification puts beer brewing and wine making for others in Class 40, not Class 43. If you contract brew or make wine for other brands, that service belongs there.
  • Class 25 is for merch. Shirts and hats are common in this industry, and the article on studio merch explains how that filing works.

Each class has a USPTO base application fee of $350. A brewery with a taproom will usually want Class 32 and Class 43 from the start, and can add others when the business actually sells them.

The right time is before you submit the COLA and before you order cans, labels, bottles or the taproom sign. A name change after a print run means new labels, and often a new label approval. A search before any of that is the cheapest point to find a problem.

Seed is a $650 clearance search with a written opinion. Grove is $2,600: the search, the opinion and the federal application, with procedural Office Actions included. USPTO fees are separate, $350 per class.

If you're not selling yet, you can file on an intent-to-use basis and hold your place in line while the label goes through TTB. The article on intent-to-use applications explains how that works. For restaurants, packaged food and drinks more broadly, see the food and beverage page.

You can see every flat fee on the all services page, and the FAQs page answers most of what comes up before a first conversation.

Questions about your name? Email us at hello@citrus.legal, or book a paid 30-minute consultation (opens in a new tab) for advice on your specific situation.

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

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