No matter what end is envisioned for the wine business, the first legal matter that must be addressed before the brand is established is to ensure the brand can be protected under trademark law. A wine brand is word, design or a combination of both that identifies the wine business to the world. The creation of a brand starts with an initial dual analysis: is anyone using a similar or identical brand in the wine or wine related trademark classes of goods and services (trademark search); and are there similar or identical brands in other trademark categories which may have similar channels of trade.
The second step in evaluating a proposed trademark is determining whether it actually functions as a trademark. The most common types of trademarks are words, designs (logos), tag lines, and trade dress. As long as these words and/or designs identify the source of the goods, the words and/or designs may function as a trademark – which may be protected. An individual or business may register a trademark to protect domain names, business names, certain geographic names and other related terms (as long as the geographic names are not geographic indicators and consumers are unlikely to make a goods/place association), and sometimes surnames.
Our Chicago trademark attorneys highly recommend that every wine business register and protect its intellectual property and trademarks to achieve maximum protection. Although unregistered trademarks can be protected in the U.S., they may only be afforded protection within certain geographic areas of use. Moreover, a subsequent registration of a confusingly similar trademark for the same or similar products and/or goods could potentially “freeze” a businesses ability to use its trademark in new geographic territories. On the other hand, a federal trademark registration through the USPTO protects the trademark nationally against subsequent users. A federal trademark registration provides access to the federal courts and in certain situation statutory damages and attorneys fees.
Our trademark attorneys provide trademark search and clearance services both on the state and federal level will to determine whether the adoption of a wine businesses trademark will likely violate the rights of a third party. We perform a preliminary search of the proposed trademark and write opinions based on the likelihood of successful registration by applying the law and weighing different factors. We advise our clients as to the risks involved with certain trademarks that may have a likelihood of confusing consumers. This trademark search and clearance process is the first step in protecting your business’s intellectual property. It is a business owner’s best interest to know whether his or her investment in the business’s brand will be fruitful and will not be impaired by someone claiming trademark infringement or dilution against him, and to establish the ability to stop others from using the same or confusingly similar trademarks.