Trademarking a brand name, product name, logo, or design in the alcohol industry has become commonplace among alcohol producers as a seemingly automatic protective measure when launching a new brand or product. Registering a trademark on the principal register can put competitors on notice of your right to exclusive use of the mark in commerce as well as protect against subsequent infringers looking to usurp the reputation or goodwill of the brand. But what about the forgotten cousin of trademark, trade dress? Why do we rarely see producers running out to obtain trade dress protection for their products?  Trade dress protects the “total image” or “overall appearance” of a product or establishment and may include features such as size, shape, color or color combinations, texture, graphics or even certain sales techniques (John H. Harland Co. v. Clarke Checks, Inc., 771 F.2d 966, 980 (11th Cir. 1983)). Trade Dress protection is afforded when features of a product or a product’s packaging are distinctive and not required for functionality, but rather are used to create an association between the producer and the product. Distinctiveness can be inherent, or it can be acquired through secondary meaning when an aspect of a product that is not necessarily distinctive on its own eventually becomes distinctive through consumer association with the mark or brand in connection with the product, successful marketing techniques, and widespread product awareness and popularity. Protection is not offered for functional aspects of a product which are essential for competitors to use and for which there are no comparable…

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Jack Daniels (“JD”) filed suit against Dynasty Spirits Inc. and Buffalo Bayou Distilleries for copyright infringement, dilution of trademarks, false advertising, trade dress infringement, and disparaging consumer reviews which hindered JD’s reputation and good will. Dynasty bottles, labeling, and package coloring are claimed by JD to be substantially similar causing consumer confusion (JD claims that Dynasty even asked retailers to place their product near JD product). Jack Daniel’s claims the label and trade dress similarities between these whiskies and its product have and will continue to hurt its brand.   For more, click here.

According to various sources, alcohol brands have too many social media accounts across multiple territories and cannot keep up with posting new content. According to The Drinks Business, spirit companies typically have a minimum of three social media accounts (usually Twitter, Facebook and Instagram), but keeping these up-to-date and responding to consumers is a labor-intensive task. Instead of posting to create brand awareness, brands are spending too much time responding to customer inquires.  That’s why you may not have seen some big brands posting on Twitter of late (some since 2017). 

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