Remove the Risk from Content that Sells
Posted on | November 15, 2010
Written by | Ian Griffith
"Illegal" label courtesy of bevlaw.com
We have written in the past about how we are on the cusp of a new era whereproduct information is becoming more widely available to consumers who research and purchase wine online. Yet, as I write this a largely unremarkable lawsuit is being heard in NY District Court where a European drinks producer is trying to control the use of their brand name online. At first glance this lawsuit seems trivial, and certainly feels like a waste of time for those who were subpoenaed to show up at court. However, the threat of lawsuits like this has a dampening effect on potentially productive projects.
Beverage Media was subpoenaed as a witness in this case because we collected some information from a website almost 7 years ago about a Polish liqueur . It turns out the product description referred to the source of the recipe but without the second distillery’s permission. The plaintiff is seeking damages from the liqueur producer for a violation of their trademark.
This brings to mind an episode where a wine and spirits company had started to share a significant amount of content on their products, only to back out of the exchange because of concern that intellectual property rights were unclear for content that had been collected online. Content for these products was blocked from distribution where it would have helped facilitate sales for all involved.
When it comes to collecting the content that sells alcoholic beverages online, retailers are not accustomed to asking permission before copying it over. We are after all trying to sell their products! It’s one thing if another retailer takes stylized product pictures, but information from the producer’s website? Surely the retailer can have access the same sales materials that were used to convince the store buy it in the first place. Yet wineries sometimes go to strange lengths to control their brands online.
We once worked with a prestigious European producer who wanted to make sure their products were well represented on retailer websites. They provided clean, high resolution images of all their products except the flagship wine. Apparently the principal of the company didn’t want images of this product in circulation where they could be “misused”. Of course, the result is that now everyone uses the only images available, low quality shots from the producer’s website which are much poorer than those we received for their entry level brands.
While there is some question about whether descriptions that relate to the characteristics of a product are indeed copyrightable, there is a need for clearer guidelines about using information from a producer’s website. Importer and winery websites typically include the standard copyright statement and may even require that a retailer receive written consent to copy content. Others make vague warnings about improper use without defining acceptable use.
What is needed is a model Terms of Use document where producers explicitly permit and hold harmless retailers for collecting and reusing content to sell their products. This doesn’t limit their ability to enforce legitimate trademark and copyright claims but it would remove the threat of lawsuits and relax the rules on distributing content online. It’s not reasonable to expect members of the trade who are trying to sell your products to search through various legalistic terms and conditions to understand the requirements of each site. Any risks associated with collecting this content needs to be removed.