Monday, April 18, 2011

Brand trends

Lex Vini

A Wine Law Blog from Dickenson, Peatman & Fogarty
Monday, April 18, 2011

Brand Trends for Wine Revealed in Trademark Filings

Brand trends in an industry, or at least branding plans for a particular player in an industry, can often be seen before they actually debut in the market by watching trademark filings.  Under U.S. Trademark Law, a brand name, or trademark, can be protected before the brand name is ever used in the marketplace.  This is accomplished by the filing of an intended-use trademark application with the U.S. Patent and Trademark Office (USPTO).  An intended-use application allows the applicant to essentially lock up a name for a particular product or service for a period of time.  If the intended-use application is approved by the USPTO and not opposed by another party based upon some prior right, the applicant then only has to use the name on the identified goods or services in order to perfect the trademark registration, and the trademark rights in the name are then retroactive to the filing date of the trademark application.  After registration, the trademark registrant can then stop any intervening users who may have adopted the same or similar names between the filing date of the application and the date of registration (a period which may be several years long), even if such intervening user actually used the name before the trademark registrant used the name.

Because this process allows a party to secure national rights in a name before use has begun, it is one of the first steps many producers will take once they have decided to adopt a particular brand name.  Accordingly, watching trademark filings can reveal interesting market trends.

For instance, a review of filings for trademarks for wine in February of 2011 reveals the following interesting tidbits:
  • Paterno Wines International, aka Terlato Wines, appears to be pursuing a branding strategy involving text messaging abbreviations and acronyms including the following: BTW; BRB; BFF; FML; FYI; IDK; TLC; TMI; WTF;XOXO (extra credit for anyone who can identify the meanings for all of these abbreviations; do you think TTB will approve a COLA for WTF?)
  • The Wine Group appears intent on beating to death the "pastry" market it first exploited with its CUPCAKE brand with new trademark applications for the following names: SMALL CAKES; SWEET SHOPPE; JELLY DONUT;LEMON CHIFFON PIE (I wonder how Layer Cake feels about these new marks?)
  • Precept Wines also appears intent on jumping on this band wagon with applications for the following:
    CONFECTIONER’S CHOCOLATE; CONFECTIONER’S ANGEL CAKE;CHOCOLATE SHOP CRÈME DE COCOA (something just unappealing about wines named after bakery sweets).
We'll continue to bring you updates on these emerging brand trends as we conduct our monthly review of trademark applications filed with the USPTO for names for wine.

For more information or assistance on trademark matters contact Scott Gerien

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