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Thursday, April 17, 2014

COLA Watchers Beware


Since I'm no regularly posting news of new COLAs on the site, I wanted to make sure to state a few caveats that you should keep in mind when reading my COLA of the Week Posts.

First, as I've stated before, just because a COLA is issued does not mean the label will end up on the shelf.  Sometimes a company submits a label and then decides against using it.  Other times, the submit the label just to create a record of their use of the name for trademark protection.  And for imports, label approval is just one step on the way to getting the whiskey into the US.  Most labels do seem to end up on the shelf, but not all.

Second, there is a whole list of things on the label that companies can change without submitting a new label.  The list includes changes to the abv, age statement and many other label components.  While whiskey companies usually issue a new label for an age statement change, one of the most common things that gets changed without a new submission is the abv.  In many cases, the abv on the COLA is just a place holder. I've seen labels that say 50% abv for whiskeys that are later released at cask strength.  Given that, I would suggest taking the abv on a COLA with a grain of salt.

So have fun looking at the COLAs (more tomorrow!) but do keep these warnings in mind.


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4 comments:

  1. WadeApril 17, 2014 at 9:03 AM

    They have a open database of the original submittal, but not the change form. With all the changes allowed, I could see someone working the system. I've been tempted to do an open record request to see all changes submitted for whiskies in class codes I care about.

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  2. skuApril 17, 2014 at 9:21 AM

    Is a form required at all? According to the website it looks like allowable changes can be made without any additional submission.

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  3. Andy McKinneyApril 17, 2014 at 2:58 PM

    Thanks Sku, excellent post (as always). One nit we might pick at is your statement about copyright use. A COLA publication may demonstrate a bona-fide intent to use one or more trademarks, but it will not, taken alone, prove use of a trademark. And copyright does not protect brands or labels, but instead protects creative, original expression (like poetry or art or your blog posts), and a copyright owner would want to register copyright with the Copyright Office before (or soon after) publishing a COLA to preserve statutory damages (if copyright in that label’s artwork was likely to become valuable). In this industry, a COLA may be respected as a placeholder by others as a standard business practice, but a COLA does not really accomplish the ‘placeholder” function for trademark or copyright owners.

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  4. skuApril 17, 2014 at 3:17 PM

    Thanks Andy for your insight. I've corrected the text from copyright to trademark, which is what I meant.

    While it may not be legally sound, I was actually told by one of the big companies that they indeed use COLAs to protect the trademark.

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