Protect Your Brew: National Beer Day and IP

It’s no secret that Virginia loves a good brew. Virginia boasts an impressive selection of craft breweries and cideries, with more than 30 breweries in Richmond alone! But, did you know that several other states have an even higher proportion of breweries per capita? Vermont, Maine, and much of the Pacific Northwest carry an even denser selection of craft beer.  With so many small and mid-size independent brewers emerging in Virginia and across the country, it’s important for those in this increasingly competitive industry to understand their intellectual property rights. This National Beer Day, we wanted to share important legal considerations for those in the industry.

Our legal team tailors our established expertise in the field of intellectual property to assist in the protection and success of brewery-specific concerns.  From business formation to naming your brews, to protecting specialty artwork and maintaining local partnerships we offer assistance so you can focus on your craft.

Trademark Law:

How much have you attached to your brand’s name and logo? A trademark represents all the hard work you have put into your business and sets you apart in the field.  We can assist you with protecting your business/brewery name, beverage names, and taglines or slogans and enforce your rights in the same.  It is important to take steps to solidify your brand and ensure that your product is not confused with others.  Additionally, working with counsel prior to using a new trademark can help protect you from infringing upon others’ rights, and could avoid a costly infringement scenario.

Trade Secret Law:

How important are your recipes to your business? The recipes for your unique ciders and brews are only as valuable as they are kept in confidence. Trade secrets can be vital to a company’s survival, and are often among a business’s most valuable corporate assets.  Failing to properly protect trade secrets (for example, by filing a patent for a recipe that then discloses the details to the public) can prove disastrous for businesses.  Trade secret law provides an avenue to protect your valuable intellectual property while allowing it to be kept secret and potentially protected forever (while a patent only lasts for 20 years, a trade secret will last for as long as it is kept secret). Fortunately, there are measures you can take as well as policies and contractual provisions we can help you put in place to help protect your trade secrets.

Copyright Law:

Do you have artwork on your label? Did an artist create your logo or website? Alcohol brands dabble in copyright law more than you may expect. Brands should recognize the importance of filing and registering copyrightable subject matter to protect their hard work. Copyright registration and strong contracts and/or copyright assignments when necessary can help avoid preventable issues such as ownership disputes and infringement actions.  For example, under copyright law the author of the artwork, logo, website, etc., could own that material instead of the business unless the business has agreements in place that state otherwise. Our team can help ensure rights to commissioned works are transferred appropriately and provide the best copyright enforcement approach.

Licensing Law:

Do you want to partner with a local bakery for a wheat beer? How about a local coffee place for a stout? These kinds of deals can involve the sharing of proprietary information, and the parties may need to obtain permission to use the other’s trademarks and/or copyrights to market the product. Ensuring that proprietary information is kept confidential, and that certain guidelines are followed by the other business using your trademark, are smart measures to take.

Contract Law:

One of the best ways to safeguard against the various intellectual property issues mentioned above, as well as other legal issues impacting breweries, is a well drafted contract. Do your existing contracts cover all the bases with your vendors, business partners, or other third parties? How about your employment agreements?  Are they protective enough of your company in the event of a disgruntled employee? Thinking through these issues and contacting an attorney for assistance is not cynical – it’s a smart step towards safeguarding your business and ensuring its success.  Companies in the alcohol industry have significant need of contracts due to the many moving components needed to operate, and there is no one-size-fits-all contract.  Notably, brewers conducting business in certain states including California and Virginia should consider whether data privacy laws apply to their businesses that may impact their contractual requirements (The forthcoming  Virginia Consumer Data Protection Act may affect your business, which you can learn more about here.)

Celebration of National Beer Day on a brewery patio in Richmond, VA

This National Beer Day, we would like to raise a glass to the love and dedication that Virginia brewers pour into their craft.  Craft breweries, cideries, and wineries in any state should explore how considering these legal issues and putting protections in place can benefit their business. No matter what your specialty is, we want to help you protect it.

(This blog post is not intended as legal advice.  Please contact us for more information and assistance regarding your particular situation.)

 

 

Are Your Domain Names Protected?

As use of generic top level domain names (gTLDs) grows, so does the risk of trademark infringement. When the original gTLDs were released, one strategy for fighting infringement was the use of domain blocking services. Sunrise B (SRB) refers to the domain name blocking service associated with the .xxx domain name.  SRB service blocks the registration of domain names in the .xxx gTLD that match the participants’ trademark and certain limited variations of those marks.

SRB participants enjoyed a 10-year block on .xxx domain names that matched their trademark. However, this protective service expires in December of 2021 and will be replaced by AdultBlock and AdultBlock+ services, collectively referred to as the “AdultBlock Services.” These services block domain name registration for protected trademarks in the .xxx, .adult, .porn, and .sex gTLDs. SRB registrants have the opportunity to rollover to the new AdultBlock Services with no additional verification.

As the deadline approaches, rights holders will have to decide what strategy is right for their goals. Like SRB, registering for AdultBlock Services provides considerable benefits for maintaining the strength of your trademarks. In doing so, registrants take control of their brand’s reputation and protect against potential damage.

There are some prerequisites to registration with AdultBlock services. Specifically, the participant must have registered their trademark with the Trademark Clearinghouse or be a SRB participant. With so many factors to consider, it’s important for potential participants to create a plan that is right for them. To learn more about how to decide if this is the right choice for your situation, contact Gavin Law Offices, PLC.

 

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

 

–  Elizabeth Sewell and Lily Taggart

Clarifying Non-Compete Law in Virginia

In 2020, Virginia passed legislation creating prohibitory rules regarding noncompete agreements. This statute follows several other states which have created similar laws. In Virginia, employers cannot enforce noncompete agreements against low-wage employees. To fully understand and know what next steps to take for you or your business, let’s take a closer look.

This statute prohibits any agreement that “restrains, prohibits, or otherwise restricts an individual’s ability, following the termination of the individual’s employment, to compete with his former employer” (§ 40.1-28.7:8). This means there is potential to affect noncompete provisions in employment agreements, standalone restrictive covenants, and separation agreements. It does not prohibit confidentiality agreements and nondisclosure agreements.

What exactly is “low-wage”?

The term “low-wage employee” is a bit of a misnomer because it includes around half of VA employees. The statute defines low-wage employees as anyone who receives less than the average weekly wage per VA Employment Commission. This number will be updated quarterly and is subject to change but is currently approximately $59,124/year or $1,137/week. Low-wage employees also include “interns, students, apprentices, or trainees employed, with or without pay, at a trade or occupation in order to gain work or educational experience” (§ 40.1-28.7:8).

Another important aspect for employers is penalties for violation. A qualifying employee may sue an employer for violating or attempting to violate this law. The employee may receive “all appropriate relief” (§ 40.1-28.7:8) which may include:

  1. An injunction against the employer
  2. Liquidated damages
  3. Lost compensation
  4. Reasonable attorney’s fees and costs, including fees for expert witnesses

What employers can do:

Luckily, there are some measures that employers can take to avoid violation, provide a fair working environment, and still protect their professional interests. An easy first step is to post a copy or approved summary of the statute with other required employment notices. Employers must also take the time to review form non-compete agreements (and other restrictive covenants) to ensure compliance. Non-compete agreements for employees other than “low-wage employees” are enforceable if the employer can show that they are:

  1. Narrowly drafted to protect legitimate business interest
  2. Not unduly burdensome on the employee’s ability to earn a living
  3. Not against public policy

Due to other provisions of note not explored in this post, be sure to contact Gavin Law Offices for more information.  We continually monitor recent non-compete and trade secret legislation to better serve you and your business.

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

 

Pam Gavin Interviewed by CBS 6

Thanks to SonaBank P.O.W.E.R, on Wedesday April 10, 2019 our very own Pam Gavin was interviewed by CBS 6’s Jessica Noll. Tune in to the video here, to learn more about Gavin Law Offices, Pam’s journey to where she is today and to talk about the importance of having a great team.

https://wtvr.com/2019/04/10/sonabank-p-o-w-e-r-believing-in-the-power-of-you-7/

Pam Gavin began her legal career at two “mega” firms before building her own firm Gavin Law Offices, PLC – we’re sitting down for a second cup with Pam to learn more about her firm, what drives her and how the Sonabank POWER program helped her to achieve it. Jessica Noll – WTVR CBS 6 #vtmsecondcup #vtmsecondcupwithjess #sonabank #sonabankpowerprogram

Posted by WTVR CBS 6 News on Wednesday, April 10, 2019

 

You can head over to our Facebook page and see more www.facebook.com/gavinlawoffices