The owner of Day Wines in Dundee, Oregon has filed a lawsuit to attempt to shut down production of a Sonoma County Zinfandel marketed under a label that reads, “Day,” based on the claim that it creates confusion among customers.

In trademark law, a party can be barred from using a brand name that is identical or very similar to the name of other products of the same type.  In the USPTO’s system of categorization of products, all alcoholic beverages are lumped into one type.  So when Ehren Jordan Wine Cellars, LLC released a zinfandel labeled “Day,” it didn’t matter that Brianne Day and her company, Day Crush LLC do not produce a zinfandel, they are still considered similar products.

Jordan appears poised to fight Day, though, based on the fact that she does not have a registered trademark for the brand.  In fact, Day’s application was put on hold in December based on an existing registered mark (this one owned by a Paso Robles winery) for “Special Day Wines.”

The case brings an issue faced by many producers to the Court’s attention – a winery, brewery, or distillery applies for a COLA, gets their label approved and starts selling their product, only to get hit with a trademark infringement claim because another producer already uses a similar name for an alcoholic beverage product. New companies end up investing in design and production of labels, thinking the COLA means they are clear to use the name, not knowing that they could still face trademark challenges.  Moreover, the operators of distilleries are not likely thinking about the myriad beer and wine labels out there when trying to come up with a brand that will distinguish their product from, say, other whiskeys.  But the USPTO will not afford them protection for their spirits if someone has been granted protection for a similarly-named beer or wine.

The Day-Jordan case is set for a preliminary hearing on May 4, when perhaps we will see how the court views the disconnect between the COLA process and Trademark protection.


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