Pinot Law

There is an interesting — and important — rulemaking taking place over at the TTB involving the manner in which that agency deals designates American Viticultural Areas (AVAs).

Among other things, TTB seeks comment on the effect that approval of an AVA may have on established brand names.  In other words, winery’s with brand names matching new AVA designations could be prevented from using that brand name in commerce.  TTB discusses this dilemma in its rulemaking.  To address this issue, TTB is considering a new grandfathering provision that would enable winery’s with brand names matching newly designated AVAs to continue using their brand name in commerce.

This to me is one of the more interesting aspects of the TTB’s rulemaking.  With the remarkable increase in the number of wineries in recent years, many have incorporated quasi-geographic regions into their names.  TTB notes — correctly I believe — that accomadations need to be made for  such circumstances.  Something not addressed by the TTB rulemaking is AVA designations may conflict with Trademark law.  In other words, solely on the basis of a newly designated AVA, could TTB prevent a winery from using an approved Trademark in commerce?  I will let the Trademark lawyers argue that one.

Other items the TTB is tackling include clarification of the regulatory standards for the establishment of AVAs within AVAs.  It also seeks to clarify the rules for preparing, submitting, and processing viticultural area petitions.  In this regard, TTB is really ‘upping the ante’ on what will be required to establish a sufficient petition.  Finally, from an administratve law perspective, TTB also inquires whether it can decline to proceed with a rulemaking.  In effect, TTB seeks the ability to deny an AVA petition without public comment.

The bottom line, there are a lot of key issues for wineries out there to be aware of in this rulemaking.  Comments are due on March 20th.  So if you are thinking of filing, get cracking on those comments!

Rhineland-Palatinate used under a Creative Commons License provided by Wolfgang Staudt.