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Sep 10

Local Chefs selected for the Department of State’s Diplomatic Culinary Partnership

On Friday, September 7, 2012, the U.S. Chief of Chief of Protocol, Capricia Penavic Marshall, launched the Diplomatic Culinary Partnership, a joint initiative between the U.S. Department of State and the James Beard Foundation.   This newly-created American Chef Corp will consist of chefs from across the country who will serve as resources to the Department in preparing meals for foreign leaders, and will participate in public diplomacy programs that engage foreign audiences abroad as well as those visiting the United States.

Below is a list of local participating chefs:

Anthony Lombardo, 1789; Art Smith, Art and Soul; B. Smith, B. Smith’s; Chris Jakubiec, Plume; David Guas, Bayou Bakery; Enzo Fargione, Elisir;  Eric Ziebold, CityZen; Guillermo Pernot, Cuba Libre;  Hoss Fuentes, The Palm;  Jaime Leeds, Hank’s Oyster Bar; Jeffrey Buben, Vidalia;  Jose Andres, Zaytinya; Kaz Okochi, Kaz Sushi Bistro;  Mike Isabella, Graffiato; Richard Sandoval, Zengo; Ris Lacoste, RIS; Robert Kinkead, Kinkead’s; Robert Weland, Cork; Robert Wiedmaier, Marcel’s, Rock Harper, DCCK;  Scott Drewno, The Source;  Todd Gray, Equinox;  Vikram Sunderam, Rasika;  Wes Morton, Art and Soul;  Bryan Voltaggio, Volt;  Duff Goldman, Charm City Cakes;  Bill Yosses, State Department;  Jason Larkin, State Department; Cris Comerford, White House;  Sam Kass, White House;  Walter Scheib, former White House chef;  Roland Mesnier, former White House pastry chef;  Frank Ruta, Palena;  Maziar Farivar, Peacok Café;  Spike Mendelsohn, Good Stuff Eatery;  Victor Albisu, Taco Bamba;  and Barton Seaver. 

Aug 1

What’s in a name? Why trademarking your business name can save you costly litigation fees.

In a city with an established and buzzing restaurant scene, eateries in Washington, D.C. rely on their names to promote their dishes and gain clientele.  Ben’s Chili Bowl conjures up thoughts of a salty half smoke at the U Street establishment, and the name Sweetgreen is likened to a gourmet salad with fresh, local ingredients. Thus, restaurants should protect their names as fiercely as they do their secret recipes.

A restaurant may protect its name by filing for trademark protection under the Lanham Trademark Act (15 U.S.C.A. § 1125).  Trade names under the Act are distinctive designations used to identify businesses. The purpose in protecting trade names is multifaceted. Infringement of a trade name may result in unfair trade because one party is unjustly appropriating the identity of another and as a result, the goods or benefits of another.  Further, infringement threatens the interests of the business by putting its reputation at risk. Consumers are also protected by the Act because protecting trade names promotes quality, service and good will by assuring businesses that they will be able to reap the benefits of a positive reputation.

At what point is a name unique enough to warrant protection under the Lanham Trademark Act?  Trade names can either be generic, descriptive, or suggestive, arbitrary, or fanciful.  A generic mark is ineligible for trademark protection.  For example, a restaurant named Pizza Place is unlikely to prevail against a restaurant named Pizza Corner for trademark infringement.  A descriptive mark describes a characteristic of the product and is only eligible for protection if it has a “secondary meaning.”  To acquire a “secondary meaning,” consumers must understand that the name does not refer to the ordinary meaning, but to a particular business that the mark identifies.  It is best for a restaurant if their name is considered suggestive, arbitrary, or fanciful.  These names are inherently unique and distinctive, thus protected under the Lanham Act.

In 2007, a lawsuit from Northern Virginia pitted Buffalo Wing Factory against defendants who opened a restaurant named Buffalo Wings House.  See Buffalo Wild Wings Factory, Inc. v. Mohd, 622 F.Supp.2d 325, 335-36 (E.D. Va. 2007).  The plaintiff had a valid and existing trademark registration for the mark “Buffalo Wings Factory” and had spent a considerable amount since opening in 2000 advertising its mark in local newspapers and print media, and on local radio stations. The defendant’s name and menu were substantially similar to that of Buffalo Wings Factory, both restaurants were casual dining restaurants with sports themes, both had similar color schemes, and were located in strip malls. Most importantly, customers continuously confused the two establishments; some attempting to use coupons from defendant’s restaurants at Buffalo Wings Factory.  Produce vendors and suppliers were also confused. The parties settled out of court, and signed a consent order included both monetary terms and injunctive provisions requiring the defendant to change its  trademarks, tag lines, signs, menu and product offerings, and to drop several of its copied sauces.

The touchstone of granting protection under the Lanham Act to a mark is whether there is a “likelihood of confusion.” In the Buffalo Wings Factory case, it was evident that customers and vendors alike confused the two restaurants, supporting the plaintiff’s complaint. Courts balance several factors in deciding whether a name is likely to confuse customers. These factors include: the distinctiveness of the first mark, the similarity between the two marks, the similarity of the goods or services the marks identify, the similarity of the facilities used for business, the defendants intent, and actual confusion the marks may cause.

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Jul 27

International Culinary Tours Can Raise Reputation of Local Chefs

Chefs spend long hours in the kitchen, perfecting their craft to the delight of their patrons.  But with the rise of the celebrity chef, many are finding creative ways to get out of the kitchen while still delivering palate-pleasing experiences for their clients.

Missy Fredrick of The Washington Business Journal recently reported on the international culinary tours that three local restaurateurs hosted in the past few years.  Local chefs, K.N. Vinod, Guillermo Pernot and Domenico Cornacchia have organized culinary tours in Italy,Cuba, and South India, respectively.  Chefs Mike Isabella and Barton Seaver have also participated in domestic tours through the well-known Celebrity Chef Tour Dinner Series.

These tours offer a unique experience for both host chefs and patrons.  Attendees obtain access to specialty farms and vineyards, which are not part of normal travel tours, and chefs gain increased exposure for their restaurants.

Interested in hosting such a tour?  Besides coordinating flights and travel schedules, organizers should also keep in mind some legal considerations:

Visa Issues –  U.S.citizens may be required to obtain visas to enter certain countries or special licenses. Russia and Brazil, for example, require U.S.citizens to obtain visas to enter their countries.   Moreover, Pernot’s trip to Cuba required the issuance of a special license as vacation travel to Cuba has been illegal for Americans since the United States imposed a total economic embargo against the island in 1962.

Liability Release & Waivers – Travel, international or not, is fraught with potential risks (food poisoning, medical emergencies, bodily injury due to accidents), therefore, it is important to craft a detailed release form for all participants.  Provisions should include release of liability, indemnification, consent to medical attention, and a release for any promotional use of photos of guests on the trip.

Insurance – Business owners should review their general liability insurance to determine if it covers international travel and if not, business owners should purchase foreign liability insurance coverage, to protect their business against costly legal actions arising from events occurring outside the United States.   Owners should also require all attendees to have medical insurance or purchase traveler’s insurance.

These are just a few legal issues to consider when planning a culinary tour.  If you are interested in hosting a culinary tour, an experienced lawyer can help determine and advise you on the various legal issues that may exist with your next culinary tour.

Jul 19

Chef’s Go Fresh Motorcycle Tour Promotes Local Produce

On Monday, July 16th,  a caravan of motorcycles drove 110 miles through Maryland agriculture and wine country for the Second Annual Chef’s Go Fresh Event.   The motorcycle tour, founded by Chef Robert Wiedmaier, and organized this year by the Maryland Department of Agriculture and the Georgetown Media Group, publishers of The Georgetowner newspaper, encourages local chefs and restaurateurs to purchase local produce for their restaurants in order to reduce the carbon footprint created by transporting food products long distances.

The chefs’ first stop was at Shepherds Manor Creamery in New Windsor, which produces artisan sheep cheese, and later,  Black Ankle Vineyards in Mount Airy, Maryland.   The day ended with a late lunch hosted by Frederick’s Top Chef finalist Bryan Voltaggio at Family Meal, his new restaurant in Frederick, Maryland.

Participants included Chefs Robert Wiedmaier of Marcel’s, Brasserie Beck, Brabo, The Tasting Room and Mussel Bar and Paul Stearman of Marcel’s,  Chef Thomas Elder of Härth, Chef Luigi Diotaiuti of  Al Tiramisu, Chef Ryan Fichter of Thunderburger, Pastry Chef Allison Blakely of Pie Sisters, and Chef Demetrio Zavala of Lincoln.

Jul 13

Changes to the District’s Alcohol Laws Debated at D.C. Council Committee Hearing

During a five hour hearing by the D.C. Council Committee on Human Services, over 30 witnesses testified about the Omnibus Alcoholic Beverage Regulation Amendment Act of 2012.  Chairman Jim Graham (Ward One) presided over the hearing and mediated between the concerns of local restaurant owners and neighborhood community leaders.

The amendments to the bill are a result of a taskforce, assembled by Chairman Graham, which met from December 2011 until April 2012, to help draft the legislation.  The taskforce consisted of 26 stakeholders including 14 Advisory Neighborhood Council (“ANC”) Commissioners, six alcohol licensees, two Business Improvement District (“BID”) representatives, the Restaurant Association of Metropolitan Washington, and government officials.

Out of the 43 changes proposed by the taskforce and codified in the bill, the most controversial provisions relate to 1) standing requirements for a D.C. resident to protest an alcohol license; 2) the conditions that are permitted in Voluntary Agreements; and 3) the enforcement of noise complaints against licensees.

Standing Requirements to Protest a License:

Currently, D.C. Code § 25-601 lists the persons or entities that may protest a new alcohol license as 1) an abutting property owner to the establishment; 2) a group of five D.C. residents;  3) a property owner within 600 feet of the establishment; 3) a citizen’s association; and 4) affected ANCs.

The new regulation would require the group of five residents to live within 400 feet of the establishment.  During the hearings, it was established that 400 feet is the equivalent of one city block, which many of the neighborhood witnesses believed was too restrictive, although most conceded some geographical limitation is appropriate.

Voluntary Agreement Provisions:

The D.C. code does not enumerate what types of provisions a Voluntary Agreement may contain, but the new regulations provides greater clarity as to what types of restrictions or affirmative requirements may be imposed on the licensee regarding entertainment, noise, litter, parking, security, hours of operation, and occupancy.

Additionally, Section § 25-446 is to be amended to give Voluntary Agreements negotiated between ANCs and applicants precedent over Cooperative Agreements negotiated between residents and applicants.   Graham corrected a typo in the current bill, which states that once a Voluntary Agreement is signed between an ANC and the applicant, all other protests would be dismissed by the ABRA board.

The purpose of this provision is to reduce the number of duplicate voluntary agreements, unnecessary paperwork and extreme delays in the licensing process caused by duplicate protest groups.  It was included to give due respect to the opinions of the democratically elected representatives of the ANCs and grant them greater weight in the process.  However, Graham noted that the bill, as drafted, mischaracterized the process.  Protests by neighborhood associations would not be dismissed after a Voluntary Agreement with an ANC is signed, and any Cooperative Agreement signed prior to the Voluntary Agreement with the ANC would be incorporated into the final Board Order.

Enforcement of Noise Complaints:

Two solutions proposed by new regulations to help abate the noise issues between establishments and neighbors is to require ABRA to maintain a noise complaint line and track noise complaints and to require all mixed use buildings, constructed after January 1, 2013, to be built with a minimum sound transmission class rating.

Ernest D. Jarvis, President of the D.C. Building Industry Association testified against such a blanket provision for any new mixed use building, citing the economic burden placed on builders, and Nicholas Majett, Director of the Department of Consumer and Regulatory Affairs (DCRA), echoed Mr. Jarvis’ sentiment.  Chairman Graham agreed to work with Mr. Majett to include language that would be amenable to both builders and neighborhood residents.

Chairman Graham and the Committee will review all of the comments submitted by the witnesses.  A final version of this bill will likely not be presented to the full D.C. Council until Fall 2012, at the earliest.

If you have any questions about this pending legislation, please contact our offices.  To see the full video recording of the hearing, please click here.

Jul 2

Reform Hearing Set for July 12, 2012: Omnibus Alcoholic Beverage Regulation Amendment Act of 2012

The D.C. Council Committee on Human Services is hosting a hearing on July 12, 2012 at 11:00 AM for the Omnibus Alcoholic Beverage Regulation Amendment Act of 2012 (“Omnibus”).  The bill, introduced by Councilmember Jim Graham (Ward One) and cosponsored by Jack Evans (Ward Two) is set to amend Title 25 of the D.C. Code, which pertains to alcoholic beverages.  The hearing will take place at Room 412 of the John A. Wilson Building at 1350 Pennsylvania Ave. NW (photo ID required).

The following are among some of the 43 changes proposed by Omnibus:

  • To create a new Wine Pub permit that allows for the manufacturing and the sale of wine to consumers;
  • To increase the wine alcohol percentage that can be sold by retailer’s class B licensees from 14% to 15%;
  • To allow retailer’s class C and D licensees to purchase from retailer’s class A licensees when District wholesalers are closed;
  • To require notice of placarded license applications to citizen associations registered with ABRA;
  • To require a group of five or more residents or property owners to be within a 400 foot radius to qualify for standing;
  • To require citizens associations to give notice to applicants and offer applicants an opportunity to address their voting body at a duly scheduled meeting;
  • To require citizen associations to give notice to applicants and offer applicants an opportunity to address their voting body at a duly scheduled meeting;
  • To make it a primary tier violation for failure to comply with the statutory food requirements;
  • To require that windows and doors of an establishment remain closed for a noise violation under D.C. Code  § 25 -725 to occur;
  • To make it a secondary tier violation to knowingly allow a patron to exit an on-premises establishment with an open container of alcohol;
  • To establish an affirmative defense to a violation of D.C. Code § 25-783(a) that the person was 21 years of age or older;
  • To allow the Board to fine a licensee $30,000 and suspend a license for 30 consecutive days for a fourth primary tier violation within four years.

The full bill can be found here.  A full recap of the hearing will be provided in a subsequent blog posting.

It is important to note that to be given speaking time (5 minutes for businesses/representatives, 3 minutes for individuals), registration is required by contacting Council staffer Malcolm Cameron at mcameron@DCCouncil.US or 202-724-8191.  In addition, the D.C. Council is requesting that any speakers provide 15 copies of their statements.

Jul 1

Maryland Legislative Update – New laws to take effect July 1, 2012

These new Maryland state laws take effect today, July 1, 2012.

Senate Bill 994: All beverage alcohol sold to consumers (by retail stores, restaurants, caterers, bars, etc.) in Maryland will be taxed at the new sales tax rate of 9%.

Senate Bill 755 : Allows an individual in a restaurant, club or hotel with a Class B or Class C alcoholic beverages license to consume wine not bought from or provided by the restaurant or facility under certain conditions.

House Bill 690: Repeals the prohibition in Montgomery County on the issuance of Class H beer and light wine licenses in Damascus and submits the law to a referendum of the voters.

Jun 29

Virginia, Maryland Breweries Now Allowed to Sell Pints to Customers

Thanks to recently passed Virginia Senate Bill 604 and Maryland Senate Bill 579, each state’s craft and microbreweries are now allowed to sell beer for on-site consumption.

The Virginia bill, signed by Governor Bob McDonnell, grants Virginia state breweries the ability to sell their beer for on-premises consumption.  A House amendment added language clarifying that breweries could only sell beers they own for consumption at the brewery.  Previously, breweries could only give away free one-ounce samples, sell beer “to-go”, or add a restaurant (brewpub) where the beer could be sold.

The bill’s success can be attributed to a concerted lobbying effort from the state’s breweries and beer enthusiasts who argued that the bill would have many positive effects including making Virginia a more attractive hospitality destination for a growing population of craft beer lovers, would make it easier for small breweries to start-up and expand, and, because there is little-to-no automation in smaller breweries and the brewing process is so labor intensive, would create jobs.  After the bill signing the governor helped unveil a new logo for craft beer from the Virginia Tourism Commission “Virginia is for craft beer Lovers.” Virginia currently has 44 licensed breweries.

Maryland’s new law will become effective on July 1st, 2012 and Maryland’s law establishes a “Class 8 Farm Brewing License” which bestows on the license-holder many of the privileges held by the state’s wineries (except, notably, self-distribution).  To qualify, despite the bill’s moniker, the brewery does not have to be on a farm.  The brewery does, however, have to have a maximum output of 15,000 barrels a year and use Maryland-grown grains, hops, or fruit in their beers.  The law does not specify a minimum percentage of Maryland-grown ingredients required.

The license-holder can then sell or give away beer—up to six-ounces per brand—for onsite consumption.  Furthermore, they can sell prepared foods to guests and beer “to-go.”  Like Virginia, the breweries may only sell their own beer.  But unlike Virginia, the Maryland breweries can apply for up to 12 special-event permits per year that will allow them to host festivals where they may feature beers from other breweries.

The Brewers Association reports that in 2012 the United States became home to over 2000 craft breweries, the highest number since the 1800s.  In fact, the New York Times reports that craft brewing is one of the fastest growing industries in the state of Colorado.

For more information please contact Michael B. Jones, at mjones@dbmlawgroup.com or (202) 589-1834.

Jun 27

Redline Gastrolounge Debuts New Menu

Redline Gastrolounge, located in the former Indebleu space near the Verizon Center, recently unveiled its new seasonal menu featuring classic American cuisine with a French twist.

Redline executive chef Fabrice Reymond has created a visually and palate pleasing menu which includes Marinated Boneless Short-Rib Skewers, Ceviche, Gator Three Ways, and Watermelon Salad.

   

Photo Credit: Jack Conroy

Jun 6

D.C. Council Approves Bill Extending Alcohol Service Hours for Holidays, Extended Service During Inauguration

On June 5, the D.C. Council put the final stamp of approval on the bill permitting D.C. bars, restaurants and hotels to serve patrons until 4:00 a.m. the night before federal and D.C. holidays. This extension of hours is expected to bring in at least $3.2 million in revenues, preventing a deficit and a potential increase in taxes and fees.

As reported in our May 16th post, D.C. Council Bill 19-743, which can be viewed here starting on page 29, amends District of Columbia Official Code Title 25 Chapter 7 to allow licensed establishments to serve patrons one hour later on approved dates.  In addition to the night preceding District and federal holidays, the Saturdays and Sundays preceding Memorial Day and Labor Day will also see extended service hours.  Extended service will also be permitted on the Saturday and Sunday adjacent to New Year’s Day and Independence Day, as long as either holiday falls on a Friday through Monday.

Mayor Vincent C. Gray’s initially proposed extending alcohol service hours by one hour from 2:00 a.m. to 3:00 a.m. and 3:00 a.m. to 4:00 a.m. on weeknights and weekends, respectively.  However, the D.C. Human Services Committee voted 3-2 to strip this proposal from the 2013 budget, described in our May 3rd post.  This vote followed the standoff seen throughout the district between several neighborhood groups in opposition of the proposal and local entrepreneurs, as detailed in our April 18th post.

This measure also includes the extension of service hours during what the bill designates “Inaugural Week,” which occurs the week of January 15 through January 21 in 2013.  During this week, licensed bars, restaurants, and hotels can serve patrons until 4:00 a.m.  However, these establishments must provide the Alcoholic Beverage Control Board and the D.C. Metropolitan Police with written notice of their hours of operation and a public safety plan no later than January 7, 2013.  These businesses must also pay fee for each day they extend their hours ($250 for a CN license, $100 for a CR or CT license, $50 for any other license).

For more information please contact Michael J. Kozlowski Jr., at mkozlowski@dbmlawgroup.com or (202) 589-1834.

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