Trademarks are the words, logos, and designs used by a distillery business to identify itself in the marketplace. Trademarks are the most important intellectual property opportunity for a distillery business as it identifies the source of the product and allow a company’s reputation for consistent quality and product image to strengthen. Establishing and protecting trademark rights are essential, especially once a company starts growing. There are three types of protection. Word marks protect a company’s name and slogan. Design marks protect a company’s logos. Trade dress protects product and packaging designs.
Applications can be filed with the USPTO on an intent-to-use of actual-use basis. For intent-to use application, the applicant must have a bona-fide intent to actually use the mark in commerce, whereas for actual-use applications, the applicant must provide dates of first use anywhere, and dates of first use in interstate commerce. A federal registration can last forever as long as the owner maintains it by making periodic filings with the USPTO and polices (takes steps to stop others from using it, or confusingly similar marks).
When starting a distillery business, it is important to pick a strong trademark. This often depends on where the proposed mark falls within the “Spectrum of Distinctiveness,” and how many third parties use the mark or similar mark, on related goods or services. The weakest types of marks are generic and the strongest are fanciful. Descriptive, suggestive, and arbitrary marks fall in between.
- Generic: Very weak. terms that the relevant purchasing public understands primarily as the common name, or class name, for the goods or services.
- Descriptive: Weak. terms that merely describe an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services; or if it immediately conveys knowledge of a quality, feature, function, or characteristic of an applicant’s goods or services.
- Suggestive: Intermediate strength. Terms that, when applied to the goods or services in question, require a consumer’s imagination, thought, or perception to make a connection about the nature of those goods or services. As such, a suggestive trademark differs from a descriptive term, which simply tells something about the goods or services.
- Arbitrary: Strong. Marks that are comprised of words that are commonly used in language, but, when used to identify particular goods or services, do not suggest or describe a significant ingredient, quality, or characteristic of the goods or services (e.g., APPLE for computers).
- Fanciful: Very Strong. Marks comprised of made-up terms that have been invented for the sole purpose of functioning as a trademark or service mark. Such marks comprise words that are either unknown in the language (e.g., KODAK or GOOGLE) or are completely out of common usage (e.g., FLIVVER).
The alcohol industry is unique in that alcohol manufacturers (and importers) must apply for and receive approval from TTB of their labels, proposed marks, before they sell their products in interstate commerce or file an intent-to-use application based on bona fide intent to use the mark in commerce. This database of COLAs is available to the public on TTB’s website. As such, distillery companies should make sure they at least search this database before committing to a new product or business name.