Business Protection

Time and time again, small business owners get hit with a cease and desist letter from another company they have never heard of — often located in another state. The out-of-state company demands that the local company change its name or face a federal trademark infringement lawsuit.

Now the small business owner is faced with two very expensive choices– fight a federal lawsuit or rebrand its products and services after using them for years.

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Nevada Incorporation

The Strength of Nevada’s Liability Protection

Nevada corporations and limited liability companies have arguably the strongest personal liability protection in the country. The reason is that in 2007 Nevada became the only state to limit creditors’ remedies against corporate shares to “charging orders.”

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Trade Dress

Trade dress is generally defined as the “total image” of a product. When a customer walks into a store and sees shelves of nearly identical products, “trade dress” is what distinguishes one product from another. Trade dress includes the size, shape and color of the product and its packaging. In another words, “trade dress” allows customers to pick out their favorite brands or distinguish brands. For trade dress to be protectable it must not be a functional part of the product and must distinguish one brand from another in the eyes of consumers.

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Trade Dress

When serious wine experts pick out a bottle of wine, they know exactly what they are looking for, possibly down to the barrel number. The rest of us are not so encyclopedic when shopping. We use vineyard names and brands as cues to quality based on prior experience. We also use branding to decide what we have tasted before and what we have not when looking for something new.

For a vineyard, wine branding is as much of an art and science as wine making. And the competition relies and obtaining speedy protection. It’s no surprise that numerous wine trademarks are filed every week at the United States trademark office. Reviewing just the filings from May 2, 2011 until May 6, 2011, the following trademarks were filed for wine:

HUNTERS OAK
HIBERNIA
CROSS CAPE
HIGHWAY 29 WINE
GLEE WINE
PARADA DE ATAUTA
1805
MAGNIFICO
MAGNIFICO GIORNATA
JT CELLARS
NICOLAS NAPOLEON
THREE SAINTS
DIERBERG
DRUM CANYON VINEYARD
FORESTEDGE
HARDYS
EILEEN HARDY
ARGUS
RUSTON
LA MAESTRA
ILLUSORY
STONE EDGE FARM
DB FAMILY SELECTION
CALIFORNIA-ASIA WINE EXCHANGE LLC
SATISFACTION SYRAH
SWK
SK
WHERE IT RAINS IT POURS
BURLESQUE
JESSIE’S SECRET
MUNAY

In such a crowded market, clearing names and brands prior to filing for trademark protection is extremely important. At a minimum a knockout search should be conducted for each country the wine will be distributed in. The search should include not just other wine brands, but also other goods in International Class 33 as well as goods which the trademark office considers related in other classes, such as beer.

Just as important is to file your trademark application as soon as possible, even if you are not yet using the name. In the United States, you can file an application up to three years prior to actually using it. When you finally start selling wine under your trademark, your rights start way back at your filing date, meaning you will have superior rights to anyone who starts using the mark after you filed your application. This type of advance filing also always winemakers the luxury of skipping a harvest or two in order to associate the perfect wine with a new brand

Las Vegas

Sometimes it is OK to copy some portion of a copyrighted work. That “sometimes” is called “fair use” and acts as a defense to a claim of copyright infringement.

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