Wine Trademarks Ripe for Confusion


United States law favors free competition. To compete in the marketplace, providers of goods and services often use descriptive terms, including geographic terms or place names, to inform consumers about the origin and nature of their products and services. The free use of place names is especially important for vintners since the quality of wine is closely related to where grapes are grown.

Three bodies of law affect the use of geographical terms as appellations of origin for wines in the United States: (1) trade-mark law, including federal statutes, common law, and state law regulating unfair competition; (2) international treaties; and (3) regulations of the Bureau of Alcohol, Tobacco and Firearms issued under the Federal Alcohol Administration Act. This article explores the problematic interplay of these three bodies of law and their impact on the use of geographic terms on wine labels.

Trademark Rights in Geographically Descriptive Terms

Trademark law offers or declines protection to a term based on where it falls within a semantical spectrum: generic, descriptive, suggestive and arbitrary. Those terms deemed suggestive or arbitrary are considered inherently distinctive trademarks, and there is no need to prove secondary meaning to gain protection. At the other end of the spectrum, generic terms can never be trademarks. Falling somewhere in middle of the spectrum, geographic terms are considered descriptive and not inherently distinctive. To gain trademark protection for a geographically descriptive term, a would-be trademark owner must prove that the mark has acquired a secondary meaning which indicates to consumers a single source of product bearing the mark.

  • Geographic terms without secondary meaning generally are unprotectable as trademarks.

A term that primarily describes the place a product originates ordinarily is not entitled to trademark protection because it is geographically descriptive.2

"California" obviously describes the geographic origin of wines sold by innumerable vintners, so such a term could never be exclusively appropriated by any one of them. The same is true of "Napa Valley," a well-known region of California vineyards (grape farms) and wineries (where grapes are made into wine), but the question of exclusivity becomes closer as the geographic area becomes smaller, less well known or with fewer vineyards.

  • Geographic terms that have developed secondary meaning will be protected against confusingly similar marks, subject to the "fair use" defense.

Through use in the marketplace, a geographically descriptive term can develop an association with a particular producer strong enough to acquire secondary meaning in buyers' minds as the symbol of that producer.3 When that occurs, federal, state and common law provide trademark protection, and the mark may (but need not) be registered in the U.S. Patent and Trademark Office.

The protection's scope, however, is not unlimited. First, other marks are prohibited only to the extent that they are likely to cause confusion of consumers as to the source or sponsorship of the product.4 Second, even after a user has acquired rights in a geographically descriptive term, other users are entitled to fair use of the term. The use of a geographic term is fair if made in good faith, in a non-trademark manner, merely to describe the geographic origin of the product.5 The rub in fair use of geographic terms is especially close in the case of wine labels, where it can be extremely difficult to decide whether such terms are used as marks, or in a non-trademark manner. So far as commercially practicable, the law must balance the established trademark owner's right to protect its business from a false consumer belief that someone else is producing its goods against the newcomer's right to tell the world where it does business.6

International Law and the Regulation of Wine and Spirits

Until recently, United States law did not differentiate among the types of products or services for which trademark rights in geographic terms could be acquired. However, trademark protection for geographic terms used to identify wines and spirits has long been the subject of international discussion and dispute. Most recently, the issue was the subject of heated debate as part of the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods ("TRIPS") of the December 1993 Uruguay Round of the General Agreement on Tariffs and Trade.

Articles 23 and 24 of TRIPS govern the use of geographical indications specifically with respect to wines and spirits. These provisions absolutely prohibit the registration of any trademark containing a false geographic indication of source for wines and spirits, regardless of whether the public will actually be deceived or whether the location is obscure or remote. The provisions took effect January 1, 1996 but do not apply to the continued registration of false or misleading geographic indications first used before that date.7

This prohibition required the United States for the first time to distinguish between trademark rights in geographic terms used on wine and spirits as opposed to those used on all other products and services. The United States implemented these provisions by amending section 2(a) of the Lanham Act to carve out a special exception for the use of geographic terms on wine and spirits. The amendment prohibits registration of "a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after [January 1, 1996]."

The statute does not define "origin" in terms of where the grapes are grown, the volume of grapes used from that place, or the place of manufacture. This ambiguity further clouds the already opaque prohibition of "primarily geographically deceptively misdescriptive" terms.

United States Regulation of Labels for Distilled Spirits, Wine and Malt Beverages

Complicating even more the right to use geographic terms on wine and spirits, the Federal Alcohol Administration Act ("FAAA") sets forth labeling requirements for distilled spirits, wines and malt beverages. The FAAA prohibits labels or advertising that are false and misleading or will deceive consumers.8 The FAAA authorizes the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms ("ATF") to promulgate regulations that govern extensively the use of geographic terms as product names for wine. Under the ATF regulations, wine is entitled to an appellation of origin if "at least 75 percent of its volume is derived from fruit or agricultural products grown in the place or region indicated by such appellation" and if it has been fully manufactured or finished within the state of the place or region.9

An appellation of origin within the United States can include the United States, a state, two or three contiguous states, a county if the word "county" is specified, two or three counties in the same states, or a government-approved "viticultural area."10

A viticultural area for American wine is a "delimited grape growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of this chapter."11 A wine may only be labeled with an approved viticultural area if not less than 85% of the wine is derived from grapes grown within the boundaries of the viticultural area and it has been fully finished within the state or one of the states in which the viticultural area is located.12 The ATF regulations describe more than 120 viticultural areas across the United States. Examples include Napa Valley,13 Sonoma Valley,14 Carmel Valley15 and Stags Leap District16 in California; Martha's Vineyard17 in Massachusetts; Mississippi Delta18 in Mississippi, Louisiana and Tennessee; The Hamptons, Long Island19 in New York; Ozark Mountain20 in Missouri, Oklahoma and Arkansas; Virginia's Eastern Shore21 in Virginia; Lake Wisconsin22 in Wisconsin; and Puget Sound23 in Washington.

Application of the Rules Governing the Use of Geographic Terms on Wine

Even before the TRIPS agreement mandated amendment of United States trademark law to take special account of the use of geographic terms on wine and spirits, trademark law and ATF's regulations regarding wine labeling did not always peacefully coexist. For example, in 1981 Paul Masson Vineyards, Inc. objected to an ATF proposal to name a viticultural area "The Pinnacles."24 Paul Masson objected on the basis that it had acquired trademark protection for the terms "Pinnacle" and "Pinnacles" and for the phrase "A Pinnacles Selection." Paul Masson argued that consumers who recognized those terms as associated with Paul Masson wines would be confused and misled by naming a viticultural area "The Pinnacles" because other wineries would be allowed to use that name. In this case, the prior trademark prevailed over a regulatory name. ATF had no immediate desire to test the validity of its then fledgling viticultural area regulations against a Lanham Act challenge, and asked Chalone Vineyards, which petitioned for the viticultural area, if it would accept a different name. Chalone agreed to the use of its own name, and ATF established the Chalone Viticultural area.25

As ATF became more comfortable with its viticultural area regulations it became less concerned about their trademark implications. In 1985, for example, it approved the petition of Chicama Vineyards of West Tisbury, Massachusetts, for a viticultural area known as Martha's Vineyard.26 In so doing, ATF overruled objections from the much more well known Heitz Wine Cellars of St. Helena, Napa Valley, California. Heitz claimed that approval of the viticultural area would undermine its common law trademark rights in the name of its most famous wine, the Cabernet Sauvignon from the vineyard named after the grower's wife, Martha May, and prominently designated on the label as "Martha's Vineyard."27

By 1988, ATF's position had hardened. In a Final Rule establishing the Wild Horse Valley viticultural area, ATF chose to ignore the claim of the Santa Lucia Winery, which was not within the proposed area's boundaries, but which had pre-existing trademark claims to the "Wild Horse" name. ATF stated what has apparently become its present position:

It is not the policy of ATF to become involved in purely private disputes involving proprietary rights, such as trademark infringement suits. However, in the event a direct conflict arises between some or all of the rights granted by a registered trademark under the Lanham Act and the right to use the name of a viticultural area established under the FAA Act, it is the position of ATF that the rights applicable to the viticultural area should control.28

No matter how clear ATF may make its position, some wonder whether the regulations issued under one statute can abrogate the rights granted under another. Thus, the TRIPS amendment to the Lanham Act has not solved the potential for trademark law and ATF regulations to be at loggerheads in disputes over rights that arose prior to the amendment. Recently, for example, the Bronco Wine Company of Ceres, in California's Central Valley, was unable to prevent ATF from restricting the sale and distribution of its "Rutherford Vineyards" wines in interstate commerce when it was unable to comply with ATF regulations for viticultural designations.29

The Bronco Case

In August 1994, Bronco purchased the assets of Rutherford Vintners, including its trade names, labels, trademarks, service marks and registrations. Rutherford Vintners had been using a family of "Rutherford" marks to identify its wines as early as 1968 when the vineyard was first started near the Rutherford Post Office in the Napa Valley. Thus, "Rutherford" had a geo-graphically descriptive connotation, subject to a claim by Bronco that the term had secondary meaning as the trademark of a single vintner.30 The business was incorporated in 1977 as Rutherford Vintners and also acquired a second vineyard known as Rutherford Vineyards. The company had held an ATF permit to use a variety of "Rutherford" names since 1978.31 Despite protests from Rutherford Vintners, ATF designated "Rutherford" as an approved viticultural area in July 1993. As far as ATF was concerned, any vintner meeting its local growth and manufacture requirements was free to label its wine "Rutherford," despite Bronco's claim of exclusivity.

Following its acquisition of Rutherford Vintners, Bronco hired several wineries in Napa Valley to bottle its wines. Because Bronco could not obtain sufficient grapes from the Rutherford viticultural area, but apparently could get grapes from elsewhere in Napa Valley, Bronco applied for and received permission to use the viticultural designation "Napa Valley." A 1995 shortage of Napa Valley grapes caused Bronco to again apply for a change to its labels, designating its Rutherford Vineyards wine as California wine. Bronco claimed that the California designation permitted it to use grapes grown any place in California even though the brand name "Rutherford Vineyards" (or Vintners) suggested that the grapes came from the far more prestigious Rutherford viticultural area.

The California designation, however, caused Bronco to butt heads with section 4.39(i) of the ATF requirements, which governs wine labels incorporating brand names of viticultural significance. Section 4.39(i) prohibits the use of brand names of viticultural significance unless the name: (1) meets the appellation of origin requirements for the geographic area named; (2) received ATF approval prior to July 7, 1986 and is qualified with an appellation of origin; or (3) received ATF approval prior to July 7, 1986 and the director of ATF approves the name as sufficient to dispel the impression that the geographic area suggested by the brand name is indicative of the origin of the wine.32

ATF determined that Bronco's new label did not comply with section 4.39(i). First, because 85% of the wine did not come from Rutherford grapes, the wine did not meet the requirements of the Rutherford viticultural area. Second, ATF determined that Bronco did not meet the grandfathering provisions of section 4.39(i) because no ATF approval had been issued prior to July 7, 1986. ATF further concluded that even if Bronco had been eligible for the grandfathering provision, its label was not qualified with an appropriate appellation of origin (the label designated a state rather than a county or viticultural area), nor did the label sufficiently dispel the impression that the wine met the viticultural requirements to use the appellation Rutherford. ATF thus prohibited Bronco from selling its wine in interstate commerce, that is, in states other than California.

The dispute between Bronco and ATF has generated sustained interest in the wine industry, and some concern among a few of its other members. Recently, Heublein33 petitioned ATF to amend the regulations that prevented Bronco from continuing to use its Rutherford marks.34 Heublein's proposed amendment would change the grandfathering provisions of section 4.39(i) so that producers with existing wine labels that ATF approved prior to the establishment of a viticultural area (whether before or after 1986) would be allowed to continue using such labels with the inclusion of an ATF-approved statement intended to reduce consumer confusion.

Conflicting Solutions

The Wine Institute, the U.S. wine industry's principal trade association, which numbers Bronco, Heublein-owned wineries, and hundreds of smaller wineries among its members, has appointed a Geographic Brand Names subcommittee of its Public Policy committee to address the problem. The subcommittee preliminarily recommended that section 4.39(i) be amended so that: (1) no new brand name can be established which is the same as (or substantially similar to) an existing appellation, an approved American Viticultural Area ("AVA") or an ATF-recognized foreign equivalent;35 (2) ATF should recognize no new appellation, AVA or foreign equivalent if there are one or more existing trademarks, brand names or Certificates of Label Authority ("COLA") for the same or similar names; (3) wineries can use state appellations, such as "California," if the wine meets the federal and state requirements for a state appellation, regardless of the wine's brand name, as long as there is no consumer deception or confusion resulting from the owner's marketing or advertising; and (4) no COLA can be revoked or have its use qualified or restricted unless ATF complies with certain minimum procedures.36

The first two recommendations involve the "first-in-time, first-in-right to protection" principle. The subcommittee argues that this principle will address the arbitrariness of section 4.39's July 7, 1986 grandfather date and protect pre-existing geographically significant brand COLAs. The subcommittee is concerned with ATF's recent recognition of new appellations which conflict with existing COLAs. The ATF believes recognition of a new AVA does not revoke pre-existing COLAs with identical or similar names, but rather that section 4.39(i) restricts the future use of such brand names.37 The subcommittee argues that the recognition of such new appellations in effect revokes pre-existing COLAs without the due process required by the Black Death38 case, where the court held that COLAs are property rights which ATF cannot summarily withdraw or cancel without due process (in the form of hearings, the right to present testimony and evidence, and the right to appeal an adverse administrative decision).

Additionally, the subcommittee argues that ATF abrogates trademark rights when it recognizes appellations of origin or viticultural areas which conflict with and supersede previously issued trademarks. The subcommittee admits that ATF's actions are pursuant to a literal interpretation of section 4.39(i), but argues that such an interpretation conflicts with Article 24(5) of the TRIPS Agreement, the amended section 2(a) of the Lanham Act, and a resolution passed by the Office Internationale du Vin ("OIV") in 1995 (for which ATF, as an OIV member, itself voted).

But, like any trade association, Wine Institute must consider the views of all of its members before reaching an official position to present to ATF. And many vintners, especially those who have expended financial and marketing resources promoting viticultural areas, do not favor all of the Wine Institute subcommittee's proposals.

The first to weigh in with a different view was Dennis Groth of Groth Vineyards & Winery, who was the chair of the Viticultural Area Committee of the Napa Valley Vintners Association ("NVVA"). Mr. Groth's memo,39 which he noted had not yet been approved by the NVVA, emphasized the importance to NVVA members of brand names in general, and geographic brand names in particular.40 Mr. Groth believes that the use of a geographic brand name implies to consumers, wine retailers and restauranteurs that the wine's origin is consistent with the brand name. Most vintners who choose geographic brand names do so to convey a sense of those origins. Since brand names are such important assets, winery owners choose them with great care.

While Mr. Groth generally supports the principle of "first-in- time, first-in-right to protection," he also recommends certain refinements. He agrees that ATF should adopt rules that would prevent all future conflicts between brand names and appellations but is also concerned with existing COLAs which use geographic names and believes any new rules should resolve such conflicts.

Furthermore, Mr. Groth believes that since the application process for a COLA is easier than the application process for an appellation, ATF should develop a new process to register an intent to form an appellation which is as simple as the filing of an intent to use a trademark under the Lanham Act. Mr. Groth is also concerned that an announcement of a first-in-time rule will create a rush for vintners to file COLAs for geographic names and believes a process (which it does not specify) needs to be in place to curb such an impulse.

The Wine Institute subcommittee's proposal would apply even if the brand owner obtained a COLA after July 7, 1986 so that the owner could use geographic brand names on wine not meeting the appellation of origin requirements for the geographic area in its name as long as the wine is labeled with the wine's true source. Thus, even though the brand owner knew or should have known that after July 7, 1986 the wine must meet the appellation of origin requirements to be produced under the geographic brand name, that owner would be granted the same protection as a brand owner who received a trademark prior to the advent of section 4.39(i). But the NVVA, noting such a brand owner's constructive knowledge of the risk of future restrictions on the brand's name, sees no legitimate policy justification for extending the grandfather period.

Most importantly, Mr. Groth's memo also rejects the Wine Institute subcommittee's proposal to permit the use of a state appellation for brands with geographic names. Mr. Groth argues that this recommendation would result in consumer confusion and deception because it would permit brand owners with geographical brand names to produce wine from grapes grown anywhere within California simply by using a California appellation. Consumers will be confused because the brand name will continue to suggest that the grapes came from a specific place in California when, in fact, they could come from any place in the state. For example, Stags Leap is a promontory on the eastern side of Napa Valley. Stag's Leap is also a geographic brand name. If Stag's Leap Wine Cellars, the brand owner, were permitted to produce a wine under the Stag's Leap label with a California appellation, using grapes from, for example, California's hot Central Valley rather than the much more expensive grapes from the Stags Leap AVA, consumers would reasonably be misled about what they were purchasing. Therefore, in Mr. Groth's view, the ability to use grapes from anywhere within a state for wine which has a geographical brand name smaller than a state, at least where the brand was created after July 7, 1986, would gut section 4.39(i) and the protection that section provides for consumers.

The Wine Institute subcommittee will meet later in the summer to attempt to reconcile its earlier proposal with Mr. Groth's (and, one assumes, ultimately the NVVA). If the Institute's members remain split, the organization will likely not take any position on the issue, allowing ATF to try to reconcile the industry's competing interests through a rulemaking proceeding. In the alternative, ATF could take no further action, leaving the existing rules and interpretations in place (which would, in effect, vindicate the Mr. Groth's position).

In the meantime, it remains to be seen whether the recent amendments to the Lanham Act will generate conflicting interpretations of the statute itself or will ease the tension between trademark rights in geographic brands and the ATF labeling regulations. Clearly, the lines between trademark rights and ATF regulation of wine labels are not well marked. The Bronco case only scratches the surface of the possible conflicts between these areas of law. Those interested in exclusive unfettered rights to use appellations of origin for wine and spirits should monitor with care any claims submitted to, and rulings made by, ATF and the Patent and Trademark Office.

Neither trademark rights nor compliance with ATF regulations alone provides complete protection for a vintner seeking to use a name of geographic significance on an American wine label. Trademark rights in a geographic term do not presently preclude its designation as a viticultural area under 27 C.F.R. part 9. Likewise, compliance with ATF regulations does not insulate a vintner from a charge of trademark infringement. Until and unless the clash between these regulatory schemes is resolved, a winery, wherever located, acts at its peril by adopting a brand name which could later become an approved viticultural area. In the mean-time, those seeking to use names of geographical significance on American wine labels should do all they can to satisfy the requirements of both regulatory schemes.

Endnotes

1 JamesM. Seff practices in the field of alcoholic beverage law and RichardL. Kirkpatrick in the field of trademark law, both at Pillsbury Madison & Sutro LLP; TriciaL. Greenberg practices intellectual property law at Fenwick & West; Julie Uhm will graduate from Columbia University law School in 1999 and was a summer associate at Pillsbury in 1998.

2 15 U.S.C. § 1052(e)(2) (prohibiting registration on the Principal Register of "primarily geographically descriptive" terms). In Elgin National Watch Co. v. Illinois Watch Case Co., 179 U.S. 665 (1901), the Elgin National Watch Company, located in Elgin, Illinois, which used the mark ELGIN on watches, was unable to prevent a competitor, the Illinois Watch Case Company, also located in Elgin, from engraving its watch cases with the name ELGIN as well. "Primarily geographically descriptive" terms are, however, usually deemed "capable" of serving as trademarks, and thus are eligible for the Supplemental Register. 15 U.S.C. § 1091(a).

A geographically deceptive or deceptively misdescriptive term is completely prohibited from registration as a trademark because the public may falsely believe that the product has come from a particular place. 15 U.S.C. § 1052(a) and (c)(3).

3 15 U.S.C. § 1052(f). For example, unlike the watchmaker in Elgin, who had no recourse against a competitor using the name "Elgin," the American Waltham Watch Co. was able to prevent a competitor from using the geographical term WALTHAM in connection with watches. American Waltham Watch Co. v. United States Watch Co., 173 Mass. 85 (Mass. 1899) (Holmes, J.). Although the name WALTHAM was originally merely a descriptive geographical term, the American Waltham Watch Co. had since acquired a "great reputation" and the name had come to have a secondary meaning when used with watches which the public associated with the name WALTHAM.

The composite term CALIFORNIA COOLER for wine coolers acquired secondary meaning sufficient to merit trademark protection because the public came to associate the composite mark with a particular brand of wine coolers. California Cooler, Inc. v. Loretto Winery, Ltd., 774 F.2d 1451, 1455 (9th Cir. 1985) (composite had sufficient secondary meaning to support preliminary injunction).

4 15 U.S.C. §§ 1052(d), 1125(a).

5 Restatement (Third) of Unfair Competition § 28 (1995); 15 U.S.C. § 1115(b).

6 American Waltham Watch Co., 173 Mass. at 87.

7 15 U.S.C. § 1052(a).

8 27 U.S.C. § 205(e), (f).

9 27 C.F.R. § 4.25(a).

10 Id. at § 4.25a(a)(1).

11 Id. at § 4.25a(e)(1).

12 Id. at § 4.25a(e)(3).

13 Id. at § 9.23.

14 Id. at § 9.29.

15 Id. at § 9.58.

16 Id. at § 9.117.

17 Id. at § 9.73.

18 Id. at § 9.96.

19 Id. at § 9.101.

20 Id. at § 9.108.

21 Id. at § 9.135.

22 Id. at § 9.146.

23 Id. at § 9.151.

24 ATF Notice of proposed rulemaking (Notice No. 386), 46Fed. Reg.49600 (Oct. 7, 1981).

25 ATF Final Rule (T.D. ATF-107), 47 Fed. Reg. 25517 (June 14, 1982). This was a perfect resolution for Chalone, bringing its Lanham Act trademark rights into congruence with the FAAA viticultural area. However, it only worked so well because Chalone owned or controlled, and intended to use, virtually all the grapes in the Chalone viticultural area. If other wineries took sufficient grapes from the area, they could have used the Chalone name as an indication of geographic origin on the labels of wines made from those grapes, potentially diluting Chalone's trademark.

26 ATF Final Rule (T.D. ATF-193), 50 Fed. Reg. 255 (January 3, 1985).

27 Id.

28 ATF Final Rule (T.D. ATF-278), 53 Fed. Reg. 48244 at 48246 (Nov. 30, 1988).

29 Bronco Wine Co. v. United States Dept. of Treasury, No. CV-F-96-6354, slip op. (E.D. Cal. Dec. 24, 1996). The court denied Bronco's application for a temporary restraining order against ATF, pending resolution of the matter in the Eastern District of California. Subsequently, the court dismissed all but one of Bronco's causes of action (slip op., E.D. Cal. Aug. 1, 1997). Still later, Bronco abandoned its action, leaving ATF with a convincing victory in the courts.

30 Bronco did not claim rights in the Rutherford trademarks under the Lanham Act. Rather, Bronco claimed common law trademark rights and registration of "Rutherford Vineyards" under the laws of the State of California. California law provides for the registration and enforcement of trademark rights comparable to the Lanham Act. California Business and Professions Code § § 14200-14300 and Government Code § 12192 govern the registration of trademarks. The Secretary of State issues a certificate of registration, which constitutes prima facie evidence of trademark ownership in any California court proceeding.

31 As early as 1977, Rutherford Vintners held a Wine Producers and Blenders Basic Permit, and beginning in 1980 Rutherford Vintners received Certificates of Label Approvals to label wine under its various trade names pursuant to 27 C.F.R. § 4.50.

32 27 C.F.R. § 4.39(i) provides as follows:

Geographic brand names. (1) Except as provided in subparagraph 2, a brand name of viticultural significance may not be used unless the wine meets the appellation of origin requirements for the geographic area named.

(2) For brand names used in existing certificates of label approval issued prior to July 7, 1986:

(i) The wine shall meet the appellation of origin requirements for the geographic area named; or

(ii) The wine shall be labeled with appellation of origin in accordance with § 4.34(b) as to location and size or type of either:

(A) A county or viticultural area, if the brand name bears the name of a geographic area smaller than a state, or

(B) A state, county or a viticultural area, if the brand name bears a state name; or

(iii) The wine shall be labeled with some other statement which the Director finds to be sufficient to dispel the impression that the geographic area suggested by the brand name is indicative of the origin of the wine.

33 Now part of Diageo PLC, a combination of Grand Metropolitan PLC and Guinness PLC.

34 See Wine Business Insider Vol. 7, Issue 27 (July 4, 1997) (WineBiz FaxDocument #7761).

35 This proposal would appear to require an amendment to the Lanham Act rather than to the federal wine and spirits labeling regulations.

36 Wine Institute's subcommittee would require at least the following minimum procedural protections before ATF could revoke a COLA:

(a) prior notice;

(b) an opportunity for an informal conference;

(c) a right to a hearing;

(d) a reasonable use-up period following a final decision; and

(e) such other due process rights as are granted by the Administrative Procedures Act.

See also text accompanying note 38.

37 If the brand name cannot meet the appellation of origin requirement, § 4.39(i) requires that the wine be labeled with an appellation of origin of either (1) a county or viticultural area, if the brand name bears the name of a geographic area smaller than a state, (2) a state, county or viticultural area name, if the brand name bears a state name or (3) a statement ATF believes dispels the impression that the grapes came from the area in the brand name.

38 Cabo Distributing Co. v. Brady, 821 F. Supp. 582, 597-98 (N.D. Cal. 1992).

39 Memo of May 15, 1998 by Dennis Groth regarding a "Meeting of Wine Institute Subcommittee on Geographic Brand Names."

40 Mr. Groth listed 26 NVVA members who use geography as part of their brand names