This spring, the California Supreme Court issued a landmark decision in Dynamex Operations West, Inc. v. Superior Court that has far-reaching consequences for nearly all industries in California. The Dynamex ruling established a new test to determine if a worker is an independent contractor or an employee in California. Because the law treats employees and contractors differently, misclassifying an employee as an independent contractor can result in steep penalties and even criminal charges in certain circumstances. It is therefore extremely important that breweries throughout the state closely review any independent contractor relationships to be sure they meet the new test. Put It to the Test Before Dynamex, California employers applied a flexible, multi-factor common law test for nearly three decades […]
As Easy as A, B, C: Does California’s New Independent Contractor Test Impact Your Brewery?
Does the 21st Amendment to the US Constitution Continue to Affect the Craft Beverage Industry?
Yes, the 21st Amendment to the US Constitution passed by congress in 1933 continues to affect the craft beverage industry. Every beer and wine drinker knows that the 21st Amendment to the US Constitution appealed prohibition thereby allowing the sale of alcoholic beverages in the US. Little known is another “prohibition” advanced by the 21st Amendment, that is, the prohibition against state discrimination regarding commerce. Aside from appealing prohibition, the 21st Amendment still significantly affects the craft beverage industry through what is called the “Dormant” Commerce Clause. The Dormant Commerce Clause The “Dormant” Commerce clause prohibits discrimination against out of state companies selling goods and services in a different state. This prohibition against discrimination includes all related state directives and […]
Liquor Law is Hard
Liquor law is hard. I will attempt to explain why, in this article. If you are making mead in a far-off corner of a small state, you can probably get by without much use of or interference from lawyers. But if your ambitions are any grander, most readers of this publication will probably need help from various lawyers, and protection from various legal complexities, at some point in your near future. The upshot is that you probably should not complain, if you can find a good adviser, for any particular legal difficulty, even if it costs a lot per hour. The right person, with the right expertise, may be able to save you a lot of time and frustration. I […]
Brewers Know Their Business Best – How to Know it Even Better!
The cost of producing beer is always greater than the total price of the ingredients used to make it, and those breweries with the best understanding of the indirect costs associated with their offerings are well positioned for sustained organizational success. No brewery can truly make informed business decisions without a clear understanding of its business processes, flows and costs. Such visibility is gained by efficiently and effectively gathering operational data, processing it, managing it and leveraging it to positively impact the not only the business’s bottom line, but integral business decisions. Through an investment in the right enterprise software and resource planning (ERP system), a brewery can obtain the capability to use its operational data to gain a better […]
Securing Rights to Your Trademark Outside of the U.S.
With tap and shelf space for beer and spirits becoming harder and harder to secure, many American craft brewers and distillers are starting to look beyond the country’s borders for new markets. One thing those companies should be aware of is the fact that trademark rights are limited to the country of registration. So, a regional brewer that has been proactive about securing rights to a beer name in the US will not have a claim to the name in Canada, or elsewhere outside the US. When Should a Brewer/Distiller Pursue Foreign Trademark Rights? The easy answer here is that filing early is almost always better, so as to get an early priority date in the foreign countries. This is […]
Moonshine University: What’s the Story?
There is a lot of talk about Moonshine University, launched in early 2013. As this Louisville, Kentucky training center moves toward year five of educating new distillers, I contacted some of the principals, to see how it’s going. The questions are from me, and most of the answers are from Christin Head, Registrar at Moonshine University. 1. What is Moonshine University? Moonshine University is the educational division of Distilled Spirits Epicenter, an artisan distillery and education center. Our distillery is adjacent to our state-of-the-art classroom and is set up for small runs and hands-on distilling training. We offer technical training and business management education for start-ups, industry professionals, and those looking for careers in the distilling industry. Our courses are […]
Preparing for Launch: Steps to Protect Your Brand Name and Trademarks Before You Open
For beverage makers and beverage companies, selecting a name can be daunting and extremely stressful. Every business owner want to pick something that is catchy but that also gives the customer enough information to represent the identity of the brewery, winery or distillery. The trademark will be the basis for the company’s brand and the starting point for social media, advertising, promotional materials (as well as any signs or regulatory information needed for licensing.) It can be exciting and relieving to finally decide on a name and it typically starts a cascade of other, often expensive, steps towards finally opening (or launching a new product line.) With all of this excitement, beverage makers can easily overlook important trademark considerations that […]
Who Let the Equity Investors In? Tied House Issues Loom in the World of SEC-Regulated Crowdfunding
It’s no secret that bars, restaurants, breweries, wineries, distilleries, and other alcohol beverage licensees use crowd-funding sites like Kickstarter, Indiegogo, and GoFundMe to raise capital. In fact, the alcohol beverage industry has found so much success with crowd funding that some companies, like EquityEats, have popped up for the sole purpose of raising capital for restaurants and other industry members. Generally, though, these sites do not allow fundraising entities to offer equity securities in exchange for capital due to the strict “accredited investor” requirements from the U.S. Securities and Exchange Commission (SEC). However, the SEC recently adopted new rules regarding crowd-funding, and in doing so they may have created a tied house nightmare. Or, as one regulator phrased it, “a […]
Utilizing ‘Non-Traditional’ Trademarks to Stand Out and Build Your Brewery’s Brand
When most people think of trademarks, they usually think about a brand name or a logo like ‘Budweiser,’ the phrase ‘Taste the Rockies,’ the portrait of Sam Adams. However, trademark protection is not just limited to names and logos. Under certain circumstances, distinctive packaging, bottle shapes, sounds—even smells, color and tactile sensations—can be protected under United States trademark law. These are typically known as “non-traditional” trademarks and represent a wide range of legally-protectable intellectual property rights. The world of non-traditional trademarks can be truly wacky and can quickly cause headaches for companies who do not have a solid plan in place to protect and enforcement these out-of-the-box trademarks. However, through a deliberate and thoughtful strategy, non-traditional trademarks can help […]
Formulas 101 for Distilleries
Most distillers understand that they must jump through a seemingly never-ending number of hoops to get their products to market in the highly regulated alcohol beverage industry. There are federal and state permits and licenses to obtain, taxes to be paid, reports to be filed, and so on. Aside from obtaining a Certificate of Label Approval (COLA) from the Alcohol and Tobacco Tax and Trade Bureau (TTB) for most or all of their products distillers must also receive TTB formula approval to produce and sell certain products. TTB’s rules regarding when formula approvals are required, and the lengthy formula approval process, can be confusing or intimidating for both new and established producers. This article breaks down the basic federal requirements […]