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September 16, 2021 – While “dry January” has been a common New Year’s resolution for years, more and more people – especially millennials and younger generations – are choosing to live an alcohol-free life year round. Alcohol-free beer and so-called alcohol-free cocktails have long served non-drinkers looking to blend into a bar or cocktail party, be a responsible designated driver, or just enjoy the taste of a beer without the buzz. . But in recent years, and especially in 2021, the soft drink industry has evolved, and alcohol brand owners need to evolve their brand management strategies accordingly.
The most notable development in the soft drink world has been the proliferation of soft drinks mimicking the tastes of various distilled spirits. These similar tasting drinks can be consumed on their own or as a replacement for traditional distilled spirits in drink recipes. The trend for alcohol-free âspiritsâ is so powerful that in 2021, the world-renowned San Francisco World Spirits Competition introduced the ânon-alcoholic spiritsâ category, recognizing 29 of these products.
Buzzwords used to market and label products in the non-alcoholic spirits category include “false spirits”, “zero alcohol”, “non-alcoholic spirits”, “non-alcoholic”, “virgin”, “non-alcoholic cocktails” , “alternative to tequila” and “not to vodka”. And just as there is no consistency in how these products are marketed and labeled, there is no consistency in how brand owners identify these alcohol-free spirits with the US Trademark Office. . This lack of uniformity can complicate efforts by brand owners to control and enforce their alcohol brands.
The essential elements of a trademark application in the United States are the owner, the trademark and an identification of the goods or services, commonly referred to as an âIDâ. If the trademark application results in registration, the combination of trademark + ID (as opposed to the trademark alone) defines the scope of protection of the owner’s trademark. This means that two entities can share the same brand for different or unrelated products. For example, one entity could use and register The Barnaby brand for hotel services while another entity could use and register the Barnaby brand for watches and jewelry.
Selecting an identifier is a deceptively simple task. As a starting point, since the US Trademark Office generally requires that a trademark be used before it is registered, the ID should accurately reflect the product or service on which the trademark is used. At the same time, as a best practice, trademark owners generally want to identify their products or services as broadly as the US Trademark Office allows. So, for example, a manufacturer of synthetic fiber rugs could accurately identify its products as “synthetic fiber rugs”, “carpet” or “floor coverings”.
In practice, most trademark attorneys would include all three descriptions in a trademark application because all three are accurate and collectively they provide broad coverage. But, in some cases, selecting an identifier is not that simple.
For a variety of reasons, including cost reduction reasons, many trademark applicants will begin the process of selecting an identifier by consulting the US Trademark Office’s Identification Manual at https://bit.ly/ 38YUqrq. For established product types, like mattresses and tennis rackets, finding ID is a straightforward task. But when new categories of goods and services emerge, it usually takes a while for the U.S. Trademark Office to establish standard identifiers to describe the new items. This delay is evident in the case of non-alcoholic spirits.
Of the US Trademark Office’s 45 classes for organizing all goods and services, there are four primary classes covering the lion’s share of beverages. Class 29, entitled “Meats and processed foods”, houses milk and other dairy-based beverages. Class 30, entitled “basic foods”, houses prepared coffee, tea and cocoa drinks. Class 33 is titled âwines and spiritsâ and houses almost all alcoholic beverages except beer which, as a historical relic, is attributed to class 32.
Class 32 is headed ‘light drinks’. In addition to beer, Class 32 light beverages include a wide range of non-alcoholic beverages and mixtures such as lemonade, fruit juices, sports drinks, energy drinks, bottled, sparkling, and water. flavored drinks, soft drinks, club soda and tonic water. . Class 32 even includes so-called “add on” bar mixes which, without the alcoholic spirits to add, are only sweetened carbonated beverages.
It logically follows that non-alcoholic spirits are intended to be classified in Class 32 as light drinks. Some brand owners have transparently identified their non-alcoholic spirits with the United States Trademark Office as “dealcoholic alcohols” and “herbal non-alcoholic alcohols.” Other non-alcoholic spirits brand owners have intentionally or unintentionally obscured the commercial nature of their products by identifying them as “flavored waters”, “water-based beverages”, “soft drinks” and ” herbal juice ‘.
Many brand owners primarily monitor their brands by subscribing to a third-party service that filters filing data for all new U.S. trademark applications by brand and class and identifies potentially conflicting brands by sending a watch notice. Initially, the trademark owner must tell the third party which classes of trademarks to monitor. Most savvy alcohol brand owners already monitor Class 32 (in addition to Class 33) for conflicting brands with great caution, especially since beer is in Class 32. But even the most aware of these brand owners might see a demand for a brand for “flavored water” or “soft drinks” and conclude that the application is benign when in fact it is a product created to mimic the alcohol of Class 33 and, in many cases, directly compete with it.
If alcohol-free spirits follow the path of non-alcoholic beer, owners of iconic alcohol brands may soon introduce alcohol-free versions of their popular products to capitalize on a new market. And even if such similar tasting branded drinks do not materialize, these brand owners will likely pit their brands against similar tasting drinks with confusingly similar names.
But identifying these potential encroachments is the first step. So whether it is ensuring the freedom to introduce new non-alcoholic equivalents or preventing consumer confusion, in the new zero-proof world, increased scrutiny and investigation of all claims Class 32 will likely prove useful for owners of alcohol brands.
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