-Martha Engel, Attorney
Government approval of commercial speech has been a hot topic of discussion by trademark nerds here and elsewhere in light of recent decisions regarding the Redskins and The Slants marks. As those decisions proceed up through the appeal channels to the Supreme Court, attention has been drawn to whether or not a trademark registration certificate should be issued by the USPTO for a mark that is immoral, deceptive, scandalous or disparaging – types of marks that were refused registration until the Federal Circuit released its decision in The Slants case, throwing out that restriction as unconstitutional. Depending on how any further decision comes down, there may be implications not only on the USPTO, but also on government approval of commercial speech by any federal agency.
As discussed here before, a state agency refused to allow Raging Bitch beer to be sold because the mark was offensive and sexist, despite the mark being approved by the USPTO. But even among federal agencies, the government has reached different conclusions about whether a trademark should receive approval or not, particularly in the beer, wine, and liquor industry.
Not to be confused with the TTAB, the TTB (the Alcohol & Tobacco Tax & Trade Bureau) regulates this industry, including product labels. To sell any of these products across state lines, they need a certificate of label approval (COLA) from the TTB. As many in the industry have experienced, the TTB has strict – and some might say “maddening” – guidelines for product labels. In the labeling statute, you’ll see some of the same language found in the trademark statute: labels are unlawful if they include deceptive, disparaging, false, misleading, obscene or indecent statements.
Indeed Brewing Company sells a beer called LSD Honey Ale. Lavender. Sunflower honey. Dates. It owns a federal trademark registration for the mark LSD for beer. Here is the specimen that was submitted with that trademark application:
As you can maybe see from this label, the description on the back included the letters L S and D in bold within the text, linking the letters to the ingredients.
Last year, Indeed updated its packaging and needed to submit at least some of its labels to the TTB. Recently, the TTB refused to approve LSD appearing on the labels, so the brewery dropped the acronym (and the bolded letters) from them.
Branding agencies can add value by familiarizing themselves with the nuances of TTB labeling laws and regulations when developing new packaging for their brewery, cidery, winery, and distillery clients. Some labeling changes do not require the client to re-apply for TTB approval, but it is important to know what those are and what implications any such changes may have on approval. Additionally, trademark applicants should consider applying for a COLA during the trademark process to confirm that both of these important federal agencies approve use of the mark.
Do you agree with the TTB here? Should this agency be able to reach a different conclusion on the suitability of use of a mark than the USPTO does?