David & Goliath : Nelson’s Barefoot Bucha Challenged In Court By Gallo Wines

Nelson County, Virginia

In a modern day story of David and Goliath, local entrepreneurs Ethan and Kate Zuckerman find themselves having to defend a brand they founded right here in Nelson County, Barefoot Bucha. For the past several years the couple has successfully been marketing their fizzy kombucha. They’ve recently been notified that large wine maker E&J Gallo is taking issue with the Barefoot Bucha name.

Tuesday afternoon our friends over at Barefoot Bucha sent us the following release:

E&J Gallo, the largest wine company in the world, has challenged a local kombucha tea maker’s registration of the name Barefoot Bucha. Gallo, a multi-million dollar company with a storied history of trademark litigation, is the 120th wealthiest private company in the United States. Gallo owns over 80 brands of wine, such as the popular labels André and Boone’s Farm.

Says Ethan Zuckerman, Head Brewer and Co-Owner of Barefoot Bucha, “As a small business, we don’t stand a chance of winning within the current system. It’s very frustrating, and it doesn’t feel like justice is being served.” Indeed, the trademark trial process has come under considerable fire in recent years by experts who allege that it is biased towards larger companies. Due to the imperative that they adequately “defend” their mark or risk losing it, some companies may use questionably broad interpretations of trademark law to aggressively police their brands at the expense of smaller companies, who are forced into court—and into incurring hefty legal fees—if they want to defend themselves against the larger company’s allegations. Says Ethan’s wife and business partner, Kate, “The best you can hope for as a small business without deep pockets is that, early on, you can create a coexistence agreement where the larger company will “allow” you to keep selling your product in pretty much the same way you’re currently doing, and using the name that you’ve worked so hard over a period of years to build.”
When deciding whether or not a product’s name is infringing on a current trademark, the Trademark Trial and Appeals Board (TTAB) looks at what is called “likelihood of confusion.” Says Kate, “We feel that our product is substantially different from Gallo’s. It doesn’t come in a wine bottle, and you don’t find it on the wine shelf. It’s nonalcoholic–you don’t have to show an ID to purchase it. They’re sold at different places—our consumers are educated shoppers who are focused on health—healthy restaurants and health food stores. It is very unlikely that someone would accidentally purchase our product, thinking they were buying a bottle of Barefoot Wine.”

Explains Ethan, “We picked the name Barefoot Bucha because it reflects our no waste model, and our mission of empowering people to be more conscious consumers. We use the word Barefoot in the sense of low carbon footprint, treading lightly on the Earth. Our tagline is ‘big flavor, small footprint’.”
Barefoot Bucha is a family-owned small business that is known for its innovative, sustainable method of getting its product to the market. The company has set up various fountains in Virginia, Maryland, and Washington, D.C., where customers can get fresh, Certified Organic kombucha on draft. Customers buy a bottle, which they then own, and can refill as many times as they want. Since 2010, Barefoot Bucha drinkers have saved over 350,000 bottles through the company’s refillable bottle model.

For more information, follow Barefoot Bucha on Facebook or visit http://www.barefootbucha.com