The legal definition of Beer, Dicamba’s 2018 rigged election, and other legal news to ponder from Cape Law Firm
Happy Memorial Day
In honor of Memorial Day, we are very grateful for the men and women that have sacrificed their lives for the freedoms we enjoy in the United States! We live in a special place that has been made possible by the great price paid by our military.
What is really is a “beer?”
The definition of beer is at the heart of a trademark licensing lawsuit between AB InBev and Constellation Brands, two of the largest brewers in the United States. The dispute stems from Constellation’s launch of Corona Hard Seltzer. Hard seltzers have become a major part of the beer market and many beer brands have jumped on board with their own offerings. When AB InBev took full control of Grupo Modelo, it sold Grupo Modelo’s U.S. beer business, including the Corona brand, to Constellation as part of an agreement with U.S. antitrust regulators. AB InBev kept the rights to the Corona brand outside the U.S. AB InBev claims that the license allows Constellation to use the Corona brand only for beer, i.e., ales, porters, stouts, and malt beverages, which does not include hard seltzer. “Corona Hard Seltzer is not made like ‘beer’ . . . does not have the same ingredients, and does not look like, taste like, pour like, or have the aroma of a Beer.” However Constellation claims that the definition of beer in the license includes includes sugar-based brewed beverages which would include hard seltzers.
It will be interesting to see how the court decides what sort of beverage actually qualifies as a beer. This case is also a reminder of the importance of careful drafting of any license of intellectual property.
Dicamba’s 2018 re-registration rigged by Senior EPA officials
The EPA’s Office of Inspector General confirmed that the Agency’s 2018 decision to extend dicamba’s registration for use in dicamba-tolerant crops was the result of biased political interference. In a report issued this week, the OIG found that Senior EPA management pressured the Agency’s scientists to ignore and omit data, change scientific conclusions, and deviate from procedures designed to ensure scientific integrity. As we’ve discussed in previous newsletters, dicamba has been under fire ever since the launch of dicamba-tolerant crops greatly increased applications of the herbicide throughout the country. An article by Emily Unglesbee of DTN summarized the findings of the OIG’s report. The full report can be found here and a summary report can be found here.
Cape Law Firm’s Frequently (or Randomly) Asked Questions
” What kind of protection does a Plant Variety Protection Certificate provide, and how is it different than a Plant Patent?”
A PVP Certificate provides “patent-like” protection for new plant varieties and is available for both sexual reproduction (seed) and asexual reproduction (cuttings, clones, grafts). It gives the owner the exclusive right to reproduce, sell, and use the variety under federal law. Certificates are issued by the U.S. Department of Agriculture and provide protection for 20 years from the date of issuance (25 years for trees and vines). There are three statutory exceptions to PVP protection: using the variety for research, farmer saved seed for a new crop, and the Secretary of Agriculture’s declaration to make the variety available for fiber, food, or feed.
A Plant Patent is only available for asexually reproduced plants. It provides the owner the exclusive right to asexually reproduce, sell, and use the plant and its parts. Plant patents are issued by the U.S. Patent Office and provide protection for 20 years from the date the application is filed. The criteria for a plant patent include a reasonably complete description and actual reproduction of the plant by asexual means. There are no statutory exceptions to the protection under a Plant patent. Plant patents are viewed as somewhat limited because they have a single claim covering the entire plant. Infringement generally only occurs by asexual reproduction of the actual plant protected by the patent – they must be genetically identical.