Is the name 'Brunello' a Protected Property Right?
Posted by Karl Storchmann at 3/20/2008 3:01 PM and is filed under property right,appellation,Brunello 
| Mar 20, 2008, by Richard Belzer (neutralsource)
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Last December I met a Texas distributor in a wine shop and bar who was promoting a new product he described as a Brunello made in California. The wine is made by Petroni Vineyards in Sonoma County, California, and marketed as Brunello di Sonoma. This wine, described as "the dream of San Francisco restaurateur Lorenzo Petroni," is 100% Sangiovese Grosso. Petroni believes that he is permitted to use the Brunello name.
In a cordial chat with the distributor, I took the position that Petroni was likely to encounter a legal challenge on the ground that Brunello is a protected property right owned by producers of Brunello di Montalcino, Consorzio del Vino Brunello di Montalcino (English, Italian), who are licensed under Italian regulations (Denominazione di Origine Controllata e Garantita, DOCG) to be the sole producer of Brunello. The Italian Trade Commission says there are 24 DOCG wines, of which Brunello di Montalcino is one.
Upon my return to Virginia I looked up the applicable U.S. regulations issued by Alcohol Tobacco and Firearms and discovered that they do not seem to speak unambiguously on the matter directly to the matter. ATF has a rule for wines labeled as Brunello di Montalcino, but interestingly, it only specifies that the origin be Italy. Presumably, ATF is content to let the Italians police their own regional labeling issues.
For a U.S. winery, the most important rule appears to be 27 CFR 4.39 concerning prohibited practices, which states, in part:
Any statement that is false or untrue in any particular, or that, irrespective of falsity, directly, or by ambiguity, omission, or inference, or by the addition of irrelevant, scientific or technical matter, tends to create a misleading impression.So the federal regulatory question is whether Brunello di Sonoma misleads consumers. Unlike previous cases in which wine originating from California's Central Valley could be be marketed under a name that implied Napa origination, Petroni is clearly stating that the origin of its wine is Sonoma County, and no one appears to be claiming otherwise. The Consorzio del Vino Brunello di Montalcino is disputing this.
We agreed to watch the legal landscape to see what happened. Yesterday, the Texas distributor alerted me to a press release issued on behalf of Petroni Vineyards indicating that a legal challenge has arrived. Consorzio del Vino Brunello di Montalcino has contacted them through legal counsel and "asked that it cease using the name Brunello di Sonoma for its award-winning wine." Neither Consorzio nor Petroni have posted on the web the exact contents of the communication, but the threat of legal action is surely implied.
I pose three questions for discussion:
- Have I interpreted the ATF regulations correctly? If not, what is the correct interpretation?
- If so, does Brunello di Sonoma run afoul of 27 C.F.R. 4.39?
- Does Consorzio del Vino Brunello di Montalcino have a property right to the name Brunello?
Based on my experience you are correct in assuming that this name will be denied. First it is misleading (which violates a host of regulations) but more important I believe it violates the recent trade agreement we just negotiated with the European Union called the Wine Accords. We agreed we would stop using European geographical wine descriptors on American wines...for years this has been a very contentious issue as many of the terms t that had become generic in the U.S. such as Champagne, Chablis and Burgundy. I can't think of anyone trying to define our right to use descriptors that are specific as Brunello ...and don't believe anyone will support the right to do so. We recently had a label disapproved for putting the words "made in a Bordeaux style" on the back label...so i don't know how this one slipped through and think it will rescinded if indeed it was ever actually submitted.
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Allen -- that's the very point. "Brunello" is not a geographic indicator -- it's the nickname for the local sangiovese clone. The geographic indicator is the "di Montalcino" part, exactly analogous to something in english like "Napa Valley Cabernet" or "Barossa Shiraz." Yes, using "Shiraz" rather than "Syrah" does suggest a Southern-Hempisphere style because "Syrah" is, for whatever reason, not really used for the wines from English-speaking Southern hempisphere countries.
To wit: Rosso di Montalcino, from the same region. Now, would you argue that Rosso is a geographic descriptor? Yes, but I think that would be incorrect. Rosso is a winemaking style or blend. Nor would it be correct to say that Americans can't label a wine "Barbera di Sonoma" just because there are Barbera d'Alba and Barbera d'Asti. The distinction between "grape/recipe" and "location" in the Italian names of at least some Italian wines is pretty clear.
The French have avoided this problem by labelling their geographic indicators and the vinting requirements under the same name -- which is why the Bordeaux style that you brought up would not apply. A wine cannot be made in a Bordeaux style, by definition, outside the Bordeaux region.
So yeah, when you split it up like the Italians do, you have to deal with the consequences of that. But for other varieties that do not contain both the grape/recipe and the region -- e.g., Barbaresco, Barolo, Amarone -- there's no problem because in those instances, like in France, the recipe is tied to a region without specifically naming the region.
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This seems to be an obvious error by the ATF missing another example of a long history of American winemakers wanting to trade on the reputation of a European region. We can speak technically or we can speak honestly. When we talk about Brunello it is almost always with a regional meaning. When I tell another winemaker I had a great Brunello the other night there is no confusion. They know that I am talking about a wine from an Italian region, not an Italian grape variety grown in America. When asked about what grape variety is used for making Brunello di Montalcino how many of us would answer Brunello? Maybe a few smart asses, but let's be real; we would say Sangiovese. It's too bad Petroni Vineyards think they have to play these games; it diminishes us all.
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Is Brunello the name of a grape or not? If it is, then Petroni has some grounds for his claim. If it is not the name of a grape, but rather a name associated with a region, then he's wrong. In either event, I'm sure the winery will enjoy the publicity associated with any legal dispute. From one of the little brown ones
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I was sent copies of the lawyers' letters back and forth on this, and quoted them in the winesandvines.com Headlines on March 19. I also spoke with and quoted Wendell Lee, general counsel for Wine Institute, and Mr. Petroni.
Since the TTB granted Petroni a Certificate of Label Approval for his Brunello di Sonoma, styling it as the "fanciful name" and Petroni as the brand name, Mr. Lee seemed doubtful that the Consortio claim would be fruitful.
Brunello is the first-listed synonym for Sangiovese in the National Grape Registry, sourced in large part from the Vitis International Variety Catalog. So yes, Carlos, Brunello is the name of a grape. And Sonoma is the name of a place, as is Montalcino. As Mr. Petroni's attorney pointed out, the consortium's trademark is for Brunello di Montalcino, not "Brunello."
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