So you wanna start to make wine commercially
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So you wanna start to make wine commercially? . What are my legal options, rights, and opportunities? Napa Valley College February 13, 2014 By K. Christopher Branch, Esq. Adjunct Professor of Wine Law Loyola Law School, Los Angeles

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So you wanna start to make wine commercially

So you wanna start to make wine commercially?

What are my legal options, rights, and opportunities?

Napa Valley College February 13, 2014

By K. Christopher Branch, Esq.

Adjunct Professor of Wine Law

Loyola Law School, Los Angeles

Founder of Winelaw.net, a legal services firm providing operational wine law legal services to vintners and growers throughout the United States .

winelaw.net/KC Branch Firm 707 204 9593


Pressures on the wine industry

Pressures on the Wine Industry

  • Luxury Items that should be taxed according to Government

  • Evil Spirits that contributes to the delinquency of people that should be outlawed according to the Prohibitionists

  • The 3 Tiers restrict any Tier from becoming a controlling interest

    • Producer

    • Distributor -- not in reality

    • On/Off Sale Retailer

    • Consumer

winelaw.net/KC Branch Firm 707 204 9593


Choose a brand mark

Choose a Brand/ Mark

Criteria:

Uniqueness

Legally Correct

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Is your brand unique in the wine industry according to the uspto and the ttb

Is your brand/unique in the wine industry according to the USPTO and the TTB?

Research!

http: ttb.gov – “colas on line”

http: ustpo – “trademark search

winelaw.net/KC Branch Firm 707 204 9593


Do other winemakers have the name in their brands marks

Do other winemakers have the name in their brands/marks?

May be possible to use, but may be less transactional costs to use non-used names

winelaw.net/KC Branch Firm 707 204 9593


So you wanna start to make wine commercially

Gallo Winery v. Pasatiempos Gallo

Do non-wine Companies Use the Brand/Mark?

winelaw.net/KC Branch Firm 707 204 9593


Is the brand legally correct

Is the brand legally correct?

Federal Government through the TTB must approve all labels. Ask yourself does the brand/mark contain -

Any false, ambiguous, or missing statements which can mislead the consumer.

winelaw.net/KC Branch Firm 707 204 9593


So you wanna start to make wine commercially

Any statement, design, device, or representation which is obscene or indecent.

winelaw.net/KC Branch Firm 707 204 9593


So you wanna start to make wine commercially

Any statements disparaging a competitor’s product?

winelaw.net/KC Branch Firm 707 204 9593


So you wanna start to make wine commercially

Any statement, design, device, or represent-ation of or relating to analyses, standards, or tests, irrespective of falsity, which the appropriate TTB officer finds to be likely to mislead the consumer.

winelaw.net/KC Branch Firm 707 204 9593


So you wanna start to make wine commercially

Any statement (other than a statement of alcohol content) that leads you to believe the beverage is intoxicating.

winelaw.net/KC Branch Firm 707 204 9593


So you wanna start to make wine commercially

Any pictures or statements that lead the consumer to believe the person (in the picture or endorsement) endorses or produces the product.

w inelaw.net/KC Branch Firm 707 204 9593


Should i get a license to use art or name

Should I get a license to use art or name?

winelaw.net/KC Branch Firm 707 204 9593


Start your brand protection

Start Your Brand Protection

Register Brand on Intent to Use Basis with United States Patent and Trademark Office

Consider State Protection

Consider International Protection

Google News

Brand Protection Services

winelaw.net/KC Branch Firm 707 204 9593


So now i have a brand a company and a place to make my wine now what

So now I have a brand, a company and a place to make my wine..now what?

winelaw.net/KC Branch Firm 707 204 9593


My choices of business models

MY CHOICES OF BUSINESS MODELS

  • Sole Proprietor, dba

  • Partnership

  • Limited Partnership

  • LLC

  • S Corp

  • C Corp

winelaw.net/KC Branch Firm 707 204 9593


So now i have a company what is my business model

So now I have a company, what is my business model?

Am I growing grapes to make wine?

Am I buying grapes to make wine?

Am I buying bulk wine and bottling it?

Am I doing this in my own facility?

Am I leasing a facility?

Do I want to share a facility?

Do I want someone else to do all of the work?

winelaw.net/KC Branch Firm 707 204 9593


Answers

Answers!

  • Am I growing grapes to make wine? – yes

  • Then you need the following:

    • Land

    • Vineyards

    • California ABC winegrower type 02 License

    • TTB Permit

    • Bond

winelaw.net/KC Branch Firm 707 204 9593


Answers1

Answers!

  • Am I buying grapes to make wine? – yes

  • Then you need the following:

    • Contracts to buy grapes

    • California Ag License

    • TTB Permit

    • Bond

    • California ABC winegrower type 02 License

winelaw.net/KC Branch Firm 707 204 9593


Answers2

Answers!

  • Am I buying bulk wine to bottle? – yes

  • Makes you a negociant

  • Then you need the following:

    • Contracts for Grape Purchases

    • TTB Permit for bonded wine cellar

    • Bond

    • California ABC type 17/20 License

winelaw.net/KC Branch Firm 707 204 9593


Answers3

Answers!

  • Am I doing this in my own facility? – yes

    • Review local land issues

    • Review potential hazards

      • To vendors

      • To wine

      • To customers

    • Review facility for Compliance

      • ABC

      • TTB

      • ADA

winelaw.net/KC Branch Firm 707 204 9593


Answers4

Answers!

  • Am I doing this in in a leased facility ?– yes

  • Need a written contract with few limits on use

    • Review potential hazards

      • To vendors

      • To wine

      • To customers

    • Review facility for Compliance

      • ABC

      • TTB

      • ADA

winelaw.net/KC Branch Firm 707 204 9593


Answers5

Answers!

  • Am I doing this in in a shared facility ?– yes

  • Alternating Proprietorship

    • written contract with few limits on use

    • Can be large or small

winelaw.net/KC Branch Firm 707 204 9593


Answers6

Answers!

  • Do I want someone doing all of the work? - yes

    • Need a contract

    • Custom Crush Facility

    • 02 issue

    • No license issue

    • Who’ s wine is it really?

    • Who is responsible for wine?

winelaw.net/KC Branch Firm 707 204 9593


Time to apply for permits and other nasty things

Time to Apply for Permits and other nasty things

  • Federal Basic Permit

  • ABC 02 or 17/20

  • Bond

  • Insurance

  • 60 – 90 days usually

winelaw.net/KC Branch Firm 707 204 9593


Can i finally make wine

Can I finally make wine?

Yes!

winelaw.net/KC Branch Firm 707 204 9593


Fast forward i have the wine how do i sell it

Fast Forward --- I have the wine..how do I sell it?

- depends upon your license

- consumers

- on premise

- off premise

- other wineries

winelaw.net/KC Branch Firm 707 204 9593


What are the trade practice pitfalls

What are the trade practice pitfalls?

-FTC

-TTB

-ABC

-Other state rules

winelaw.net/KC Branch Firm 707 204 9593


The california abc act

The California ABC Act

  • The laws seek to avoid the evils and excesses of disorderly marketing conditions that plagued the alcoholic beverage industry prior to prohibition.

  • The Act seeks to remove the manufacturer’s influence over the retailer.

  • The Act is intended for the protection of “the safety, welfare, health, peace, and morals of the people of the State, to eliminate the evils of unlicensed and unlawful manufacture, selling, and disposing of alcoholic beverages, and to promote temperance in the use and consumption of alcoholic beverages.”

winelaw.net/KC Branch Firm 707 204 9593


Enforcement actions

Enforcement Actions

Failure to follow ABC rules, including irresponsible beverage service can be reported by the ABC itself, competitors, and the general public. Penalties include bad publicity, monetary fines, suspensions, and in severe situations, forfeiture.

winelaw.net/KC Branch Firm 707 204 9593


Advertising

Advertising

  • Catalog

  • On-Site Display Advertising

  • Premiums and Gifts to Retailers

  • Giving Out Consumer Advertising Specialties

  • Retailer Advertising Specialties

  • Contests, Sponsorships and Non-Profit Activities

winelaw.net/KC Branch Firm 707 204 9593


Thank you

Thank You

This document and the information provided by KC Branch at this presentation is not intended to be legal advice and tailored neither to any specific situation nor an individual. These materials and the oral presentation of information are provided without warranty and any representation of the truth of any of the matters asserted by the KC Branch Firm. Thanks to Patrick of PB Media ([email protected]) for some of the Photos.

winelaw.net/KC Branch Firm 707 204 9593


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