Alcohol Beverage Brand Checklist: Label Approval Filings, Appellation and Origin Claims, Distributor and Tier Compliance, Advertising Review, and Trade Dress Evidence

By Casey Scott McKay · 2025-06-01

This checklist audits an alcohol beverage brand in the order the questions actually arise, which is not the order clients present them. The regulatory category comes first because it determines what the product may be called and therefore what the brand may be. Clearance follows, searched wider than the register, then the filing, then label approval, then appellation and origin claims, then state brand registration. The second half covers the tied-house constraints that shape marketing, distributor appointment in franchise-law states, contract production terms, the substantiation file behind craft and heritage claims, and the trade dress evidence that has to be gathered from launch. Gate items mark where work should stop.

IP and Technology > Trademarks | Checklist | Published 1 June 2025 - Updated 5 May 2026 | Casey Scott McKay - marksy.us

Summary. This checklist audits an alcohol beverage brand in the order the questions actually arise, which is not the order clients present them. The regulatory category comes first because it determines what the product may be called and therefore what the brand may be. Clearance follows, searched wider than the register, then the filing, then label approval, then appellation and origin claims, then state brand registration. The second half covers tied-house constraints on marketing, distributor appointment in franchise-law states, contract production terms, craft claim substantiation, and the trade dress evidence gathered from launch. Gate items mark where work should stop.

Keywords: alcohol brand checklist · class and type designation · formula approval · label approval register · clearance beyond the register · geographic mark bar · appellation sourcing · certification mark rules · state brand registration · tied house review · distributor franchise analysis · contract production terms · sourced spirit disclosure · craft substantiation · bottle trade dress evidence

How to use this checklist

| Phase | What it produces | Who runs it | Gate | |---|---|---|---| | 1. Category | A confirmed class and type designation | Compliance and counsel | Nothing named before this | | 2. Clearance | A search wider than the register | Counsel | Search covers unregistered users | | 3. Filing | An application matching the specification | Counsel | Specification matches the category | | 4. Label approval | An approval register matched to artwork | Compliance | Artwork designed around mandatory statements | | 5. Origin | A supportable appellation position | Specialist counsel | Sourcing verified before design | | 6. State registration | Every launch state mapped | Compliance | Federal approval obtained first | | 7. Marketing | A plan that survives tied-house review | Marketing and counsel | Reviewer present at concept stage | | 8. Distribution | Appointments made as if permanent | Commercial and counsel | Franchise analysis per state | | 9. Production | Recipe, improvement, culture, and inventory terms | Operations and counsel | Terms before the first production run | | 10. Claims and dress | Substantiation and an evidence file | Marketing and counsel | File started at launch |

The matter. A founding team has a name they have used for two years in a taproom, a bottle concept from a design agency, a contract distiller in another state, an enthusiastic wholesaler in three states, and a launch date nine months out. Nobody has confirmed what the product may legally be called. The back label describes the founder's grandmother. The wholesaler has sent its standard agreement.

Phase 1. Confirm the category

[ ] Determine the class and type against the standards of identity at 27 C.F.R. § 5.22 for spirits, or the corresponding wine and malt beverage frameworks.
- Why. The definition determines what the product may be called, which determines what the brand may be. Every downstream commitment made before this is settled becomes a constraint on the advice.
[ ] Identify products falling outside a standard type, which must be designated as specialty products with a truthful statement of composition.
[ ] Check whether formula approval is required before label approval, since it adds a step and a timeline the launch plan usually omits.
[ ] Establish what age, vintage, and production statements are supportable, remembering that age refers to the youngest component and that vintage claims carry percentage requirements tied to the appellation.
[ ] Accept that category terms are not ownable, since a term naming a category is generic for it and the regulatory definition makes the argument documentary rather than evidential.
[ ] Flag protected foreign category names, which are protected by international agreement and domestic implementation and which will draw a refusal as well as a challenge.
[ ] Tell the marketing team what the product may be called before any artwork is commissioned.
[ ] [Gate] No name is adopted and no artwork commissioned before the category is confirmed in writing.

Phase 2. Clear the name, searched wider than the register

[ ] Search across categories, since wine, beer, and spirits are frequently found related to each other and to bar and restaurant services.
[ ] Expect the channel factor to collapse, because everything moves through the same wholesalers onto the same shelves, which makes the confusion analysis unusually favourable to the senior user.
[ ] Search unregistered users: taproom listings, state brand registries, label approval databases, and trade press.
- Trap. Small producers operate under unregistered names for decades, a register search misses them entirely, and they are precisely the parties who will notice a national launch.
[ ] Apply the wine and spirits geographic bar in 15 U.S.C. § 1052, which addresses marks containing a geographical indication identifying a place other than the origin of the goods where use began after the relevant agreement date — a stricter rule than the general geographic analysis and one regularly missed.
[ ] Check consent requirements for personal names, including where a departed family member may object to continued use of a shared surname.
[ ] Search internationally where export is contemplated, since foreign category definitions and geographical indication protections can render a domestically cleared name unusable.
[ ] [Gate] No filing is made and no packaging printed until the search covers unregistered users.

Phase 3. File promptly and correctly

[ ] File once cleared, without waiting for the product, using an intent-to-use application under 15 U.S.C. § 1051 to preserve priority while approval is pending.
- Why. The interval between clearing a name and shipping a product is long enough in this sector for a competitor to file first.
[ ] Match the specification to the confirmed category. An application identifying "whiskey" for a product classified as a spirit specialty creates a mismatch between registration and product that surfaces in enforcement and in diligence.
[ ] File in the related classes the brand will actually occupy, including hospitality services where a taproom or tasting room is planned.
[ ] Track the use deadline against the approval timeline, since a product that cannot ship because approval is pending is a product not in use.
[ ] Record the constructive notice date, which under 15 U.S.C. § 1072 gives nationwide priority from registration and is the answer to a later entrant claiming good faith adoption.
[ ] Diarise incontestability under 15 U.S.C. § 1065, which matters for a brand intended to last.
[ ] [Gate] No packaging is printed before the application is filed.

Phase 4. Prepare and manage label approval

[ ] Run the artwork past six questions before submission. Is the class and type designation correct and prominent? Does anything imply a category the product is not? Are all mandatory statements present, correctly worded, and at the right size? Is every origin reference supportable? Is every production claim supportable? Does the back-label story contain a factual claim nobody has checked?
- Trap. The back label is where the problems live. The front is reviewed by everyone; the back is written by marketing, approved by nobody, and contains the sentence that generates the class action.
[ ] Confirm the government warning is reproduced exactly, along with alcohol content, net contents, and the bottler or importer statement in their prescribed forms.
[ ] Design the artwork around the mandatory statements rather than adjusting it afterwards, since a trade dress concept developed without them produces a design that cannot ship.
[ ] Submit early and in parallel with trademark prosecution, allowing for an unpredictable timeline.
[ ] Keep a register of approvals matched to the artwork each covers, with identifiers and dates.
[ ] Route every packaging change through a resubmission check.
- Why. Brands routinely discover during diligence that the labels in market do not match the approvals on file, and that finding stops a transaction while it is corrected.
[ ] Keep a substantiation note for every factual sentence on the label, cross-referenced to evidence.
[ ] Have someone outside marketing read the back label specifically for factual claims.
[ ] [Gate] No artwork goes to print before approval issues and the register entry is made.

[ ] Confirm that whoever now owns the approval register still works at the company, because in practice it is a spreadsheet maintained by one person and it is lost in the first reorganisation after launch.

Phase 5. Settle the appellation and origin position

[ ] Verify sourcing against the appellation claimed before the label is designed around it, since domestic appellations require prescribed percentages from the named place.
[ ] Check the schedule of protected foreign geographical indications rather than reasoning from principle, since some are absolutely protected and some are protected subject to grandfathered semi-generic use.
[ ] Treat certification mark practice as a distinct discipline. The owner may not use the mark itself, must permit use by anyone meeting the standard, and must control the standard — and failure on any ground supports cancellation under 15 U.S.C. § 1064, with the definitional framework at 15 U.S.C. § 1127.
[ ] Read scheme rules as licence terms: permitted forms of the mark, minimum sizes, prohibited adjacent claims, and reporting obligations, any breach of which is a withdrawal risk.
[ ] Check the scheme's own standing, since some designations are registered certification marks, some rest on a trade agreement schedule, and some rest on industry practice alone — three very different levels of protection against a competitor making the same claim.
[ ] Assess estate and vineyard name exposure, since a named site carries regulatory conditions and may also be a trademark, and land is frequently sold separately from brands.
[ ] Recognise the double exposure of a place-based brand name. A geographically descriptive term needs acquired distinctiveness; a deceptively misdescriptive one is barred; both grounds sit in 15 U.S.C. § 1052.
[ ] [Gate] No origin claim appears on artwork before sourcing is verified in writing.

Working with a certification scheme

Where an origin or sustainability claim depends on a scheme, the practice differs from ordinary licensing in ways that catch people out, and a producer paying for a scheme should know what it has bought.

[ ] Understand that the certifier cannot use the mark on its own goods, which is the opposite of the ordinary trademark position and means the scheme's governance rather than its marketing determines its value.
[ ] Confirm the certifier permits use by anyone meeting the standard, since discriminatory refusal is a ground for cancellation and a producer refused on grounds unrelated to the standard has a remedy.
[ ] Check that the standard is actually policed, since a certifier that does not inspect and does not impose consequences risks the mark, and a scheme resting on published standards and self-declaration is weaker than it appears.
[ ] Recognise the single point of failure. The producer's right depends on continued compliance, withdrawal is not negotiated, and there is no notice period worth relying on. A brand whose packaging, marketing, and price position all rest on a scheme mark carries a risk its own conduct does not fully control.
[ ] Read the scheme rules as licence terms: permitted forms of the mark, minimum sizes, prohibited adjacent claims, and reporting obligations, any breach of which is a withdrawal risk.
[ ] Establish the scheme's own standing. Some designations are registered certification marks under the framework at 15 U.S.C. § 1064 and 15 U.S.C. § 1127; some rest on a trade agreement schedule; some rest on industry practice alone. The three give very different protection against a competitor making the same claim.
[ ] Record the annual compliance and audit obligations in the same calendar as the state registration renewals, since both are lapse risks with commercial consequences and both are administered by whoever inherited the file.

Phase 6. Map state brand registrations

[ ] List every state where the product will be sold and the registration obligation in each.
[ ] Sequence correctly. State registration typically requires the federal approval first and often a designated wholesaler, which means distribution decisions gate market entry.
[ ] Keep three sets of records consistent — federal approval, state registrations, and the trademark registration — since they describe the same brand and diverge unless someone owns the consistency.
[ ] Record renewal obligations, since a lapsed state registration means the product cannot lawfully be sold there.
[ ] Address label variants, since a different size or vintage may require its own registration.
[ ] Assign an owner for the registration calendar who is not the person who filed the last one and then left.
[ ] [Gate] No shipment into a state before its registration is confirmed active.

[ ] Check that state brand registrations name the correct permit holder where production has moved between contract facilities, since a registration in the name of a former bottler is a registration that does not cover the current product.
[ ] Confirm the importer of record for any imported component or finished product, since the importer's name appears on the label and drives both the approval and the retention obligations.
[ ] Verify that the entity holding the trademark registration is the entity named on the approvals, because groups routinely hold brands in one company and permits in another, and the mismatch surfaces in a transaction.

Phase 7. Run the marketing plan through tied-house review

[ ] Put the reviewer in the room at the concept stage.
- Why. A compliance sign-off at the end kills campaigns after the creative spend, which trains the marketing team to route around legal rather than to consult it.
[ ] Reject payment for placement. Slotting fees and display payments are the ordinary currency of consumer retail and are prohibited or heavily restricted here.
[ ] Check every item supplied to a retailer — refrigeration, taps, glassware, point-of-sale hardware, signage, staff time — against the permitted forms and values, which vary by state.
[ ] Review staff incentive programmes, since paying a retailer's staff to recommend a brand is restricted and brand ambassadors working in retail premises occupy a regulated position.
[ ] Assess exclusive arrangements on both tied-house and competition grounds.
[ ] Design consumer promotions per state or to a lowest common denominator, since refunds, sweepstakes, and coupons are constrained by federal trade practice rules and state law in ways that differ materially.
[ ] Review events at retail premises, since a producer funding one is supplying a thing of value to the retailer.
[ ] Apply the content rules: no health or therapeutic claims outside permitted frameworks, constrained comparative claims and superlatives, endorsement disclosure for influencer work, and age-gating and placement requirements from regulation and industry codes.
[ ] Check social media depictions of consumption against the codes, since media buying access depends on code compliance.
[ ] [Gate] No campaign proceeds to production without tied-house review.

Phase 8. Appoint distribution as if it were permanent

[ ] Run a franchise analysis for every target state before appointing, recording which states protect the relationship and on what terms.
- Why. Many states provide that a supplier may not terminate, fail to renew, or substantially change a wholesaler relationship without narrowly defined good cause, with notice and cure periods and compensation for brand value built.
[ ] Consider whether entry into a severe-statute state is worth the permanence it creates.
[ ] Define the grant by naming brands, expressions, and package sizes.
- Trap. A grant of "the supplier's products" captures every future launch, so a wholesaler appointed for one gin acquires statutory protection over a portfolio that does not yet exist.
[ ] Define territory by counties or postcodes rather than by description, since ambiguous territories produce disputes between wholesalers that the supplier is drawn into and cannot resolve.
[ ] Agree objective performance standards at appointment: depletion targets, account penetration by channel, distribution breadth, and inventory levels. Standards introduced later are far weaker evidence of good cause.
[ ] Require monthly depletion and inventory reporting by account, which is both a management tool and the contemporaneous record any future good-cause case rests on.
[ ] Include brand use and quality control terms, since the wholesaler is a trademark licensee when it markets the brand and an uncontrolled licence supports an abandonment argument under 15 U.S.C. § 1064.
[ ] Draft termination and transition mechanics: notice, cure, compensation basis, inventory repurchase, transfer of state brand registrations, and cooperation with a successor.
[ ] Settle the direct-to-consumer position expressly, against the constitutional backdrop of Granholm v. Heald and the further limits recognised in Tennessee Wine & Spirits Retailers Association v. Thomas.
[ ] Address marketplace and delivery platforms, whose characterisation varies by state and whose listings use the brand's marks without approval.
[ ] [Gate] No appointment is made before the state franchise analysis is complete.

Phase 9. Fix the contract production terms

[ ] Protect the recipe as a trade secret. Recipes are not copyrightable as such, and the protectable position under 18 U.S.C. § 1839 requires marking, access limits, and terms specific to it rather than a general supply agreement.
[ ] Allocate improvements developed during the relationship, since a producer that develops a process improvement while making a customer's product will otherwise keep it and apply it for others.
[ ] State whether the producer may make the same or a similar product for others.
[ ] Address yeast and proprietary cultures — genuinely valuable, genuinely portable, and almost always unaddressed.
[ ] Settle inventory and work in progress at termination, which in whiskey is years of maturing stock and determines whether the brand can move production without abandoning it.
[ ] Confirm sourced spirit disclosure is truthful and consistent with marketing.
- Trap. Marketing implying own production while the label discloses another state's origin is a false advertising exposure under 15 U.S.C. § 1125 that plaintiffs have pursued repeatedly.
[ ] Handle private label arrangements, where the retailer owns the mark, the formulation may belong to the producer or to neither, and the exit terms decide whether production can move.
[ ] Address custom crush and alternating proprietorship licensing consequences and the question of whose wine it is at each stage.
[ ] [Gate] No production run starts before the recipe, improvement, culture, and inventory terms are agreed.

Phase 10. Substantiate the claims and build the trade dress file

[ ] Substantiate every factual implication. A claim that a product is distilled at a named place, or made by a particular process, is a factual representation and is actionable if untrue.
[ ] Align imagery with substance, since copper pots and rural buildings alongside a "handcrafted" claim on a continuously column-distilled product have been treated as reinforcing a factual impression rather than as decoration.
[ ] Do not plan around a puffery defence. Some vague terms have been treated as non-actionable, the outcome depends on framing and context, and planning around it is planning to litigate.
[ ] Do not rely on a corrective disclosure elsewhere on the label, since whether a mandatory statement cures a prominent contrary impression is not predictable enough to design around.
[ ] Anticipate both routes: competitor claims under 15 U.S.C. § 1125 and consumer class actions under state law.
[ ] Characterise the trade dress favourably and support it. A bottle is a container, which argues for packaging trade dress capable of inherent distinctiveness under Two Pesos, Inc. v. Taco Cabana, Inc.; a distinctive bottle sold as part of the product's identity edges toward product design, which always requires secondary meaning after Wal-Mart Stores, Inc. v. Samara Brothers, Inc..
[ ] Document non-functionality, since a shape improving pouring, stacking, or cooling is functional to that extent and manufacturing cost counts too — TrafFix Devices, Inc. v. Marketing Displays, Inc. makes functionality an absolute bar.
[ ] File on the closure and capsule separately, which are frequently the most recognisable element and are routinely omitted.
[ ] Register the label artwork with the copyright office, which is inexpensive and the fastest route against copied labels and counterfeit packaging.
[ ] Consider colour where a capsule or label colour is consistently used, following Qualitex Co. v. Jacobson Products Co., on a showing of secondary meaning and non-functionality.
[ ] Start the evidence file at launch: advertising spend attributable to the package, look-for copy directing consumers to the shape or capsule colour, unsolicited press describing the package, sales volumes by package generation, non-functionality records, and a contemporaneous file of competitor imitation.
[ ] Invest in closure and authentication features for premium spirits, since empty genuine bottles are refilled and resold — counterfeiting with a public safety dimension, better addressed physically than by litigation after the fact.
[ ] Record marks with customs in every market where premium product is sold.
[ ] [Gate] The trade dress evidence file exists and is organised by package generation before any dress claim is asserted.

The brand transfer file

Alcohol brands trade constantly and the assets do not move as cleanly as a purchase agreement implies. Whether acting for buyer or seller, confirm all six before price is agreed.

[ ] Establish the current standing of every federal and state permit. Permits attach to the entity and the premises, a change of ownership triggers applications and approvals, and in some states operations pause. A lapsed or conditioned permit is a closing problem discovered late.
[ ] Identify which distributor relationships carry statutory protection, since franchise protection attaches to the brand rather than the owner and an acquirer inherits the incumbent wholesalers. Price the cost of consolidating distribution before signing.
[ ] Count the label approvals requiring resubmission. Approvals name the bottler or importer, so a change of entity means new approvals for every label — across a portfolio of dozens of stock-keeping units, a substantial exercise the integration plan omits.
[ ] Confirm the marks transfer with goodwill. Brands here are frequently sold apart from production facilities, inventory, and recipes, and an assignment of a mark without the means to make the product invites the argument that nothing was conveyed.
[ ] Treat recipes, cultures, and aged inventory as separate assets. A whiskey brand's value sits partly in barrels not saleable for years, and the barrels, warehouse receipts, recipe, and yeast strain each need their own transfer provision.
[ ] Run two security searches. Lenders take security over brands and over inventory, and perfecting security over a registered mark involves a recordation practice distinct from ordinary personal property filing. A buyer that searched only one has searched half.
[ ] Check the state brand registrations transfer or must be refiled, since they are held in the name of a permit holder.

Where this sector's disputes actually go

Budget by where the risk lands rather than by where it feels largest.

[ ] Brand conflicts. Ordinary litigation under 15 U.S.C. § 1114 and 15 U.S.C. § 1125, with the sector feature that goods are almost always related and channels identical, making the analysis favourable to the senior user — which a junior user with a distinctive name in a different category should be told before it invests.
[ ] Origin and appellation disputes, brought by certifying bodies, regional associations, or competitors, and turning on regulatory sourcing requirements rather than on confusion.
[ ] Category and production claims — craft, small batch, handmade, aged — challenged by competitors and by consumers. This is the fastest-growing category and the one most brands do not budget for.
[ ] Distributor terminations, the most expensive disputes in the sector, decided by statute rather than contract and frequently resolved by payment because the standard is unfavourable.
[ ] Counterfeit and refill for premium spirits, where empty genuine bottles are refilled and resold — trademark counterfeiting with a public safety dimension.
[ ] Grey market and diversion, where the material difference doctrine supplies the theory if the diverted goods differ from those authorised for the destination in labelling, alcohol content, or importer statement.
[ ] Confirm insurance cover for advertising injury and intellectual property claims, since consumer class actions over label claims are the exposure most likely to arise and most likely to be excluded.

Direct-to-consumer and the modern channel

[ ] Map the direct wine shipping position state by state, since permits, volume limits, tax collection, and age verification vary and spirits shipping remains far more restricted than wine.
[ ] Assess marketplace and delivery platforms, whose regulatory characterisation varies by state and whose listings use the brand's marks in ways the brand did not approve.
[ ] Address third-party fulfilment, where the ordinary counterfeit and diversion questions arise plus the licensing constraint on who may hold and ship the goods at all.
[ ] Treat a subscription or club model as a fifty-state compliance exercise, since brand registration and shipping questions arise wherever a member lives.
[ ] Confirm tasting room and on-premises licence conditions separately. That channel is frequently the producer's highest-margin route to market and sits under its own permit with its own limits on what may be sold, to whom, and in what quantity.
[ ] Check export requirements before the domestic name is fixed, since foreign label regimes, category definitions, and geographical indication protections can make a domestically cleared name unusable and a rebrand for export creates a different product in the consumer's eyes.

The trade dress evidence file, in detail

[ ] Record advertising spend attributable to the package, not merely to the brand, since a claim that consumers recognise the bottle needs evidence that money was spent teaching them to.
[ ] Run look-for copy directing consumers to the shape, the closure, or the capsule colour. It builds the record at no additional cost and is the most persuasive evidence available.
[ ] Collect unsolicited press describing the package rather than naming the brand.
[ ] Separate sales volumes by package generation, since the claim attaches to the current dress.
[ ] Keep non-functionality evidence: alternative shapes performing the same function, design records showing appearance rather than pour rate drove the choice, and confirmation the shape is not cheaper to produce.
[ ] File instances of competitor imitation contemporaneously, which is more persuasive than a retrospective search.
[ ] Commission a survey before a dispute where the stakes justify it, since it is the only direct evidence of recognition and is far harder to obtain credibly once litigation is on foot.

A note on order

The phases are ordered by dependency, and the ordering is the whole point of the checklist.

Category is first because it constrains everything downstream: what the product may be called, what the brand may be, what the specification says, and what the label may claim. A client that has already named the product, paid for artwork, and booked a launch has made three commitments before the constraint was known, and each of them narrows the advice.

Clearance and filing follow because the interval to shipment is long and priority matters, and because the specification depends on the category determination.

Label approval runs in parallel from the moment artwork is final, because the timeline is unpredictable and it gates everything after it — including state registration, which usually requires the federal approval, and which in turn often requires a designated wholesaler.

That dependency is why distribution sits at Phase 8 rather than later: the appointment gates market entry even though it is the hardest decision to reverse. The tension is real and there is no way to remove it. The best available answer is to run the franchise analysis early, before the commercial team has built a relationship it feels obliged to honour.

Marketing review sits before distribution because campaign concepts are developed months ahead and because the tied-house constraints shape what the sales pitch to a wholesaler can promise.

Substantiation and trade dress evidence sit last and start first. They are continuous programmes rather than gates, and the reason they appear at Phase 10 is that they run for the life of the brand, not that they begin at the end.

Outcome. A brand that has run this checklist can say what its product may legally be called, whether its name survives a search that includes the taproom two states away, whether the labels in market match the approvals on file, whether the back label contains a sentence nobody substantiated, and whether appointing a wholesaler in a particular state was a decision or a marriage. Those five answers determine whether the launch survives its first year, and none of them appears on the trademark register.

Key Authorities at a Glance

| Authority | What it settles | Phase | |---|---|---| | 27 C.F.R. § 5.22 | Standards of identity for distilled spirits | 1 | | 15 U.S.C. § 1052 | Grounds for refusal, including the wine and spirits geographic bar | 2, 5 | | 15 U.S.C. § 1051 | Application, including intent to use | 3 | | 15 U.S.C. § 1057 | Effect of registration | 3 | | 15 U.S.C. § 1065 | Incontestability | 3 | | 15 U.S.C. § 1072 | Constructive notice from registration | 3 | | 15 U.S.C. § 1064 | Cancellation, including certification mark grounds and abandonment | 5, 8 | | 15 U.S.C. § 1127 | Definitions including certification marks and abandonment | 5 | | 15 U.S.C. § 1114 | Infringement of a registered mark | 10 | | 15 U.S.C. § 1125 | False designation of origin; false advertising | 9, 10 | | Granholm v. Heald | A state permitting in-state direct shipment may not deny it to out-of-state producers | 8 | | Tennessee Wine & Spirits Retailers Association v. Thomas | Durational residency requirement for retail licences unconstitutional | 8 | | Wal-Mart Stores, Inc. v. Samara Brothers, Inc. | Product design trade dress requires secondary meaning | 10 | | Two Pesos, Inc. v. Taco Cabana, Inc. | Packaging trade dress can be inherently distinctive | 10 | | TrafFix Devices, Inc. v. Marketing Displays, Inc. | Functionality is an absolute bar | 10 | | Qualitex Co. v. Jacobson Products Co. | Colour can function as a mark | 10 | | 18 U.S.C. § 1839 | Reasonable measures element of trade secret status | 9 |

The five things people get wrong

One: naming the product before confirming what it is. Every founder arrives with a name they love and artwork they have paid for, and the category determination can invalidate both. A spirit flavoured or blended outside a standard type must be designated as a specialty product with a statement of composition, and a brand built on being called something it cannot be called has to be rebuilt. The determination takes a week and it belongs before the naming session, not after the print run.

Two: clearing against the register alone. Small breweries, distilleries, and wineries operate under unregistered names for decades, and they are precisely the parties who notice a national launch and send the letter. A register search returns clean and a taproom two states away has been using the name since 2011. Search the state brand registries, the approval databases, the taproom listings, and the trade press, because the risk lives outside the place everyone looks.

Three: writing the back label without review. The front label is examined by the whole company. The back label is written by marketing, describes a founder's grandmother, and contains a sentence about where the spirit was distilled or how it was made that nobody checked. It is the single most common source of both regulatory refusal and consumer class action in the sector, and the fix is one person outside marketing reading it specifically for factual claims.

Four: appointing a distributor as a sales decision. In franchise-law states, appointment is close to permanent: termination requires narrowly defined good cause, the standards are weighted against the supplier, and compensation may be owed for the brand value the wholesaler built. A supplier that appoints enthusiastically and drafts loosely — "the supplier's products," a territory described rather than defined, no performance standards — has bound itself to a relationship it cannot end over a portfolio that does not yet exist.

Five: never starting the trade dress evidence file. The bottle and the capsule are where a great deal of the brand's recognition lives, and a claim to them requires secondary meaning evidence that cannot be reconstructed. Advertising spend on the package, look-for copy, press describing the shape, and a contemporaneous record of competitors approaching the dress — all of it is generated continuously and captured by nobody. The day the claim is needed is the day it is too late to begin.