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A glass of Big Ass wine is not just any big-ass glass of wine, and two vintners are going to court to prove it. Although wine connoisseurs may not have heard of a wine (or rather, wines) called Big Ass, the quirky label has triggered a bicoastal legal fight that highlights the growing importance of trademarks and brand names in the ever-more-crowded wine market. Trademark disputes among wine owners have increased with the meteoric growth of the $45 billion California wine industry. The number of conflicts is no surprise, say trademark attorneys, when you realize that the winery population in the state has doubled to more than 2,000 over the last five years. In September 1995, Raymond Howarth, a Sacramento resident, registered the “Big Ass” mark at the U.S. Patent and Trademark Office with the intent of using it to distribute and market beer. A few months later, Howarth founded the Wheat Beer Co. and has been selling Big Ass Beer ever since. He also licensed the name in 2005 to the Milano Family Winery in Hopland, which sells a red table wine under the eye-catching label. But at a wine show late last year, Howarth saw several wines using the Big Ass name. Wines labeled as Big Ass Cab, Big Ass Zin and Big Ass Chard were being produced and distributed by Adler Fels Winery in Santa Rosa. Howarth learned that the winery had licensed the name from Allied Management Inc. in New Jersey, which filed to register the trademark for use on wines last February. The PTO suspended the application, citing a likelihood of confusion with Howarth’s beer trademark. Howarth’s lawyers sent a cease-and-desist letter to both Adler Fels and Allied. In response, Allied filed for a declaratory judgment in January, asking a New Jersey court to rule that Allied is the rightful owner of the mark. “We originally suggested that they license the mark from us but they were opposed to it and just went to court and sued us,” says Dawn Ross, a partner at Carle, Mackie, Power & Ross in Santa Rosa who represents Howarth. Allied, which did not return calls for comment, withdrew its suit in early May, before the judge could rule on the case. But Howarth and the Milano winery decided to go to court and sued both Allied and Adler Fels in San Francisco for trademark infringement. “When you’re faced with a bully like that, you fight back,” says Ross. “We now want to protect the trademark and make sure they stop infringing.” The suit is not the first time California wineries have gotten into a legal scuffle over wine labels. In the late 1990s, Kendall-Jackson and E.J. Gallo, two of the largest wine producers in the state, went nose to nose over the Turning Leaf wine label. Kendall accused Gallo of copying the art design of the label to confuse consumers. After three years of bitter litigation, Kendall lost the case when the Ninth Circuit U.S. Court of Appeals ruled that the winery’s multicolored wine leaf label is generic and not entitled to trademark protection. With an additional 2,000 wineries across the country � each with multiple brands and labels � and a glut of exported wines, names and brands are bound to clash. And the trademark battles are generating a healthy source of revenue for firms with a wine law practice. “It used to be, 40 or 45 years ago, you would file one brand application for each winery and that would be all you would have to do,” says Melville Owen, a partner at Owen, Wickersham & Erickson, a six-lawyer firm in San Francisco. “Now the wineries are coming up with new names every day.” Owen, who has been practicing trademark law for 50 years, counts some 300 wineries among his clients. The fights do not happen exclusively in federal court. For the most part, says Owen, the disputes begin at the trademark office, where most labels and brands are cleared and issued. The PTO publishes all pending applications on a weekly basis, leaving attorneys like Owen free to regularly peruse the filings for potential conflicts with their clients’ brands and potentially challenge the applications. Barry Strike, a trademark attorney at Hinman & Carmichael, a wine-and-beverage boutique in San Francisco, is also reporting more work in his trademark-clearance practice. Because of the proliferation of new wine brands, it is increasingly more difficult to come up with original and distinctive names. “The whole process of clearing a new brand name or a tag line has become time-consuming,” says Strike. “Too often I find that many of the brand names my clients think of are already taken.” While finding a catchy label has always been important for any business selling a product, it’s even more imperative in the wine business, says Jennifer Taylor, a trademark litigator at Morrison & Foerster. “Labels are the only thing that distinguishes one winery from the other,” she says. “And if you’re looking at a wine list at a restaurant, all you have is the wine name and that becomes really critical.” Lighthearted names have particularly taken off. “Wineries are trying to reach a younger consumer base and trying to grab attention on the shelf,” says Owen. “The more distinctive the wine name, the better it is.” All of which helps to explain why Howarth and Allied Management are willing to put up such a fight over their eye-catching labels. “Usually most wineries can’t afford to litigate cases and they try to negotiate with each other,” says Owen. “But if it’s a really good brand name, then sometimes it is worth fighting for it.”

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