In an interesting combination of alcoholic beverage law and IP law, two breweries in the state of Florida recently butted heads over a trademark dispute. It started when Due South Brewing of Boynton Beach – which has a flagship series of IPAs which range from Category 3-5 – sent a cease and desist letter to Big Storm Brewing claiming that the Tampa-based brewery’s “Hurricane Series” of Belgian-style beers, labeled Categories 1-5, violated Due South’s common law trademark rights to the terms “Category 3” and “Category 4.”

While all beer labels must pass through the TTB before hitting the market, the TTB only makes sure that labels meet the compliance requirements on their checklist. They’re not checking for trademark infringement, so this type of dispute is not unheard of in the alcoholic beverage industry. It sounds like Due South is making a mountain out of a molehill, since a generic-sounding trademark on a completely different style of beer could have a tough time in court against fair-use arguments. But, there is a legal basis for their claim.

Firstly, Due South’s “Category” series is one of its most popular lines. The “Category” trademark is very valuable to them, so it’s in their best interest to take potential infringements seriously. If they don’t, it potentially becomes much easier in future disputes for imitators to argue that their use of the trademark is legitimate.

Fun fact: Due South’s Category 5 IPA placed in multiple categories of the Best Florida Beer Championships of 2014 and 2015. If the brewery’s trademark hadn’t expired last April, they surely would have included it in their claim.

Secondly, a trademark infringement claim must prove that the other party’s use of the trademark is likely to confuse consumers. In their cease and desist letter, Due South claims that they received more than 30 reports of “actual consumer confusion and/or diminution of consumer goodwill” in less than a week.

Fortunately for them, Big Storm made the smartest decision in this scenario: they consulted with a law firm. In a dense, six page response, they laid defensive groundwork citing fair-use, questioning the strength of the trademark, and denying the likelihood of consumer confusion. The legal exchange between the law firms representing the breweries can be read here.

In response, Due South appears to have dropped the issue for now to avoid potentially drawn out litigation. Overall, this serves as an excellent lesson for breweries and the benefits of retaining legal counsel.

With a presidential election upcoming, you can expect tax policies to be subject to heightened scrutiny. Proposing a tax increase of any kind is usually bad for any delegate’s political career – most of the time. Specifically, I’m talking about the so-called “sin taxes” that only apply to certain industries such as tobacco, gambling, and of course alcohol.

Increasing sin taxes is more or less acceptable to the public because part of their purpose to reduce the consumption of goods and services considered harmful. In some states, sin taxes are a major source of revenue. According to cost information website HowMuch.net, the state of Texas generated more than $1 billion in revenue from alcohol taxes in 2014. The runners-up were Florida, with $452 million and New York with $250 million.

That same year, Tennessee took in almost $148 million from alcohol taxes, accounting for about 1% of the states total tax revenue. I’m no tax expert, but that sounds low to me. Perhaps the state is comparatively lenient on the alcohol industry since producers of fine spirits are part of the state’s cultural history.

But that doesn’t mean those producers have it easy when it comes to taxes. They’re also subject to federal excise taxes (FET) on distilled spirits – which account for more than one-third of the shelf price of most alcohol brands when combined with state-levied taxes. Luckily, there is a chance those FETs could be reduced if the issue is given enough support. That’s something to keep in mind during this political season.

Alcoholic beverages have had this regulatory quirk where, even though they are considered foodstuffs, they are not required to have nutritional fact labels or ingredients lists. The reason for this is because alcoholic beverages are regulated by the TTB instead of the FDA. To date, the TTB has not put any major pressure on alcohol producers to label their products – but thanks to the largest trade association in the business, you may start to see nutrition facts for alcohol becoming widespread.

Earlier this month, the Beer Institute announced “The Brewers’ Voluntary Disclosure Initiative,” which aims to label beers with nutritional information – including a list of ingredients, serving size, calories, carbohydrates, fat, protein, and ABV.

As for how these labels should look, the Beer Institute is leaving that up to the individual breweries. The guidelines indicate that nutritional disclosures can appear as a label on the bottle, a reference to a website, or a QR code. Since the information provided is meant to be voluntary, the types of information disclosed will vary. For example, I can imagine lots of breweries not wanting to include an ingredients list.

Members of the Beer Institute are being encouraged to achieve compliance with the initiative by 2020. Several major breweries have already agreed to follow these guidelines, including:

Busch MillerCoors HeinekenUSA Constellation Brands Beer Division North American Breweries Craft Brew Alliance

Collectively, these breweries produce more than 81% of the volume of beer sold in the US – so you can expect other breweries to follow suit to stay competitive in the market.

When it comes to Tennessee’s proud history of whisky distilling, one thing that comes to mind for most folks is Jack Daniels Old No. 7. The legendary Jack Daniel Distillery in Lynchburg celebrates its 150th anniversary this year, and they’re using the occasion to officially clarify one of the formative points of the founder’s history – who gave him his start as one of America’s greatest distillers.

If you’ve ever taken a tour of the distillery, the origin of Jack Daniels is summed up as: when he was still a boy, Jasper Newton “Jack” Daniel was sent to work for Rev. Dan Call – a Lutheran preacher who also ran a general store and distillery. Call taught young Jack how to run the whisky still, and the rest is history. But, that’s not the whole story. Call, essentially running three business, was a busy man and actually instructed his slave and Master Distiller, Nearis Green, to teach Jack everything he knew.

Many historians, whisky enthusiasts, and Tennessee locals have known about Nearis Green for some time. In fact, a 1967 biography, Jack Daniel’s Legacy by Ben A. Green (no relation), quotes Call saying, “Uncle Nearest [sic] is the best whiskey maker that I know of.” However, the spotty record keeping of frontier history (making the details of Green’s involvement unclear) combined with the brand never addressing it during tours or in its marketing have kept the story from being widely known.

According to Phil Epps, global brand director for Jack Daniel’s, there had been “no conscious decision” to whitewash Green from history, but “as we dug into it we realized it was something that we could be proud of.” Now, fans of Old No. 7 will start hearing about Green in the distillery’s marketing campaigns and during facility tours.

This news got me thinking – do Green’s descendants have any claim on the rights to his likeness? That’s probably a question better suited for my colleague and personality rights expert, Stephen Zralek.

What is Glycol and why is it Required in Brewing Beer?

In the brewing industry, glycol is a necessary part of day-to-day operations. It’s used in chiller systems that run throughout fermentation tanks and conditioning tanks to control temperature during fermentation reactions. In the service side of the industry, glycol is also used for maintaining temperature of draft beer dispensing.

To be clear, we’re not talking about toxic ethylene glycol. And we’re definitely not talking about adding any kind of glycol to alcoholic beverages – which was the center of a huge scandal in 1985.

Beer brewers only use propylene glycol, and not just any kind. Even though it’s known as “food-grade antifreeze,” there are many inexpensive, low-quality glycol solutions – most of which are not designed for a brewery’s recirculation system and run the risk of causing equipment damage. For compliance and superior performance, breweries use USP-Grade Propylene Glycol. USP (United States Pharmacopeia) is the official, standard-setting authority for medicines, supplements, and health care products in the United States. Propylene glycol with USP-Grade certification assures quality and safety for use in the food and beverage industry.

In order to achieve the desired temperature, brewers must use the proper ratio of glycol to water in the chiller system. Too much glycol will cost more and limit efficiency of the chiller, while not enough glycol could lead to freezing and damage the chiller system if left unchecked.

The average brewery uses an approximate 35% glycol to 65% water solution – but this can vary depending on the ambient temperature of the facility and the type of product being fermented. To maximize the efficiency and extend the life of your chiller system, keep up with annual inspections and consult with your equipment manufacturer for optimal glycol/water ratios and preventative maintenance.