The Value of Trademark

This is an excerpt from an article that came from Vineyard & Winery Management magazine, by Robert C. Holtzapple & Rachel Turner, July/August 2013. The importance of trademarks cannot be over emphasized. I myself worked with a winery that had been using its name for over a year and had to change it because it came too close to someone else’s name. In their case, they had used an attorney to research their name, but there was a mistake and after a year had to start branding all over again with a new name.

“A wine trademark is anything that identifies who makes the wine – the winery name, the label design, and any name given to the particular wine are all potentially trademarks.

When choosing a name, slogan or logo for your winery, vineyard or label, try to select a strong trademark that you can prevent competitors from using. A mark’s strength depends on where it falls on the distinctiveness continuum – the more distinctive the trademark, the stronger and more protectable it is.

Once you have a few desired names, determine if they are already being used. If someone is using your desired name, they likely have trademark rights – even if their mark is not federally registered – and they could sue you for trademark infringement for using their mark, or a confusingly similar mark, on the same or similar products. (Many are surprised to learn that federal registration is not required to obtain trademark rights, but you can obtain common-law trademark rights simply by selling products displaying the mark.)

Sometimes a winery uses a brand name for several years without registering or policing it. While the temptation is to maintain the status quo, we strongly recommend that you discuss with your attorney whether you should seek to register such a mark. You don’t want to learn of a competing use of your name by another winery years after it starts.

You would likely want to stop someone from using your name or wine or wine-related products or services, such as wine openers or bottling services. If you do nothing in response to another’s use of your mark on the same or similar goods, you risk diluting your mark’s distinctiveness, losing your right to exclusive use of that mark. If you learn of someone using your mark, immediately contact your attorney to discuss how to approach resolving that problem.

Many businesses may be tempted to “do it yourself” to avoid attorney’s fees; using a trademark lawyer can often save money in the long run. Creating and defending trademarks is not easy or inexpensive, but given how important your brand name is to your business, we firmly believe that the investment in establishing and enforcing your trademark rights is well worth it. “

A tip of the glass from me to you!

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