For influencers, digital creators, and creative marketing agencies, generative artificial intelligence (AI) has become an essential brainstorming partner. Whether you are using ChatGPT to structure video scripts, Claude to refine marketing strategies, or Gemini to map out a multi-platform social media campaign, these tools provide an extraordinary boost to daily productivity.
However, the way you interact with these platforms matters enormously when it comes to protecting your intellectual property (IP).
Every time a creator inputs a detailed prompt into an AI model, they are sending data across an external network. If a prompt includes a unique, unreleased brand concept, proprietary campaign taglines, or copyrighted visual references, that creative asset could be exposed depending on the platform's terms of service. Without realizing it, creative professionals may be compromising the exclusivity, confidentiality, and legal protectability of some of their most valuable ideas.
The Real-World Risk: Incidents That Prove the Point
If you think data exposure is a purely theoretical problem, documented incidents prove otherwise.
The Samsung Precedent: Samsung's device solutions division officially permitted employees to use ChatGPT on March 11, 2023. Within approximately twenty days, engineers in its semiconductor division exposed confidential information in three separate incidents. In the first, an engineer pasted proprietary source code to fix a bug. In the second, an engineer pasted code to optimize a test sequence for identifying yield and defective chips. In the third, an employee recorded a confidential internal meeting, transcribed it using a speech-to-text application, and fed the transcript to ChatGPT to generate meeting notes. Samsung's response was to ban generative AI tools across company devices and networks on May 1, 2023, and to develop its own internal AI system — later released as Samsung Gauss — with proper data controls.
The CISA Incident (Reported January 27, 2026): In a high-profile investigation reported by Politico on January 27, 2026, Madhu Gottumukkala, the acting director of the Cybersecurity and Infrastructure Security Agency (CISA), uploaded at least four government contracting documents marked “for official use only”—sensitive but not classified—to the public version of ChatGPT between mid-July and early August 2025. The uploads triggered multiple automated security alerts, prompting a Department of Homeland Security review. Gottumukkala had requested and been granted a temporary exception to use the tool by CISA's Office of the Chief Information Officer as part of an initiative to explore AI tools, at a time when most DHS employees were blocked from accessing it due to data retention concerns. The incident demonstrates that even authorized, senior officials can expose sensitive data through consumer AI tools.
For creators, pasting a client's unreleased pitch deck, a confidential campaign calendar, or a unique brand strategy carries the same fundamental risk of unpermitted data exposure.
The Legal Catch: “Reasonable Measures” of Secrecy
Under the Defend Trade Secrets Act (DTSA), 18 U.S.C. § 1839(3), an idea or strategy only enjoys legal protection as a trade secret if the owner takes “reasonable measures” to keep it secret.
Two recent federal court decisions have begun to test this principle in the AI context. In Trinidad v. OpenAI, Inc., No. 4:25-cv-06328-JST (N.D. Cal. Jan. 5, 2026), Judge Tigar dismissed the plaintiff's trade secret claims under the DTSA because she had voluntarily disclosed her allegedly proprietary frameworks to OpenAI while using ChatGPT to develop them—with no confidentiality protections in place. The court applied the longstanding principle from Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1002 (1984), that voluntarily disclosing a trade secret to a party under no obligation to protect it extinguishes the property right. Two caveats are worth noting: the plaintiff appeared pro se, and the court observed that her complaint suffered from multiple other defects, so the decision's precedential weight is limited. Still, the reasoning on disclosure is straightforward and likely to be cited again.
Separately, in United States v. Heppner, No. 25-cr-00503-JSR (S.D.N.Y. Feb. 17, 2026), Judge Rakoff ruled from the bench on February 10, 2026—with a written opinion following on February 17—that documents a criminal defendant generated using a consumer version of Anthropic's Claude were not protected by attorney-client privilege or the work product doctrine. The court's reasoning rested on several independent grounds: most fundamentally, Claude is not an attorney, and the court noted that recognized privileges require a trusting relationship with a licensed professional who owes fiduciary duties; further, by inputting confidential case material into the tool, the defendant effectively disclosed it to a third party before those materials ever reached his lawyers, and non-privileged materials do not become privileged merely by being shared with counsel afterward; finally, the defendant had not prepared the materials at counsel's direction—he acted of his own volition, so the work product doctrine did not apply. The decision has drawn academic criticism for potentially sweeping too broadly, and the court itself suggested the analysis could differ had counsel directed the use of the tool. Although Heppner arose in a criminal privilege context rather than trade secret law, the underlying principle is directly relevant to creators: disclosing confidential material to a platform that is under no obligation to keep it secret is difficult to characterize as a “reasonable measure” to protect it.
How the Big Three Handle Your Data
The consumer privacy landscape has shifted significantly since the introduction of AI chatbots. ChatGPT and Gemini have long defaulted to using conversational data from free and standard consumer tiers to train and refine their models. Anthropic had previously stood apart by not using consumer data for training by default, but on August 28, 2025, it announced updates to its consumer terms requiring Free, Pro, and Max plan users to make an affirmative data-sharing election. The updated Privacy Policy took effect September 28, 2025, and existing users had until October 8, 2025 to accept the new terms and make their selection in order to continue using Claude. For users who allow their data to be used for training, Anthropic extended data retention from thirty days to five years. Regardless of provider, if you have not actively reviewed and adjusted your privacy settings, your inputs may be in play.
To keep your assets secure, your agency or creator brand should consider employing active prompt engineering guardrails, including the following:
Toggle Off Model Training. Do not rely on default settings. In ChatGPT, navigate to Data Controls and turn off “Improve the model for everyone.” In Claude, review your model training setting in Privacy Settings. For Gemini, disable your “Gemini Apps Activity.” Note that enterprise and API-tier accounts for all three platforms operate under separate contractual data protections—consumer-tier defaults do not apply.
Keep Prompts Abstract. Use conceptual framing instead of literal, proprietary text. Instead of pasting a client's actual, unreleased slogan into your prompt, ask: “Give me five variations of a punchy, five-word slogan for a luxury eco-friendly footwear brand targeting Gen Z.”
Upgrade to Enterprise-Grade Infrastructure. If you or your agency regularly handles sensitive client data, consumer-tier accounts are a legal liability. Enterprise subscriptions and API-tier access contractually isolate your input data from public training pools—a meaningful legal distinction if your trade secret protection is ever challenged.
Generative AI is a great tool for scaling creative output, but its use should not come at the cost of legal protections. By practicing safe prompt engineering, you can harness the power of these tools without inadvertently risking the intellectual property that is core to your business.
Allison N. Berk is an attorney in DP&F’s Intellectual Property group who helps creators scale their business while protecting their brands, campaigns, and ideas. Questions? Reach out to Allison.
ABOUT THE AUTHOR
Intellectual Property attorney Allison N. Berk focuses on the prosecution and enforcement of client trademark rights, including trademark clearance, prosecution of applications for registration before the United States Patent and Trademark Office, and enforcement. Allison has litigation experience representing clients in federal court and before the Trademark Trial and Appeals Board. Allison also advises student-athletes and influencers on Name, Image, and Likeness (NIL) and rights of publicity matters. She provides strategic counsel on brand-identity protection and contract negotiations, ensuring her clients maintain commercial control over their intellectual property. Drawing on her background in trademark enforcement, Allison helps athletes and creators navigate evolving compliance standards while securing the long-term value of their personal brands.
Allison earned her J.D. from the University of California, Berkeley, School of Law, her B.A. in International Relations and African/African American Studies from the University of California, Davis. She is Chair of the Sonoma County Bar Association’s Intellectual Property and Business Law Section and is also a member of the Executive Committee of the Intellectual Property Law Section of the Bar Association of San Francisco.
The California Department of Alcoholic Beverage Control issued an Industry Advisory (Tied House Advertising Exceptions Remain Subject to Specific Statutory Conditions) reminding licensees of tied-house laws that generally prohibit suppliers from giving things of value to retailers. The advisory reminds industry members that activities such as joint advertising between a supplier and a retailer where it is not expressly permitted by an exception in the ABC Act, or “pay to play” (whether directly or indirectly), have always been and continue to constitute violations of the tied-house laws. While it is unclear whether a specific event prompted the Department to issue the new advisory, the following passage suggests that partnerships or sponsorships related to the World Cup (and other future big events such as the 2028 LA Olympics) may have something to do with it:
Business and Professions Code sections 25500 and 25502 … prohibit suppliers from furnishing, giving, or lending money to a retailer. These prohibitions extend to retailers holding permanent licenses as well as temporary licenses or permits, such as for festivals or special events like FIFA World Cup or the Olympics, even if the venues they occur in have some sort of exception. Requiring sponsorship or some joint advertising at an event to have product sold there is a violation of the ABC Act.
While there are a number of ways that special events and festivals can be conducted that allow for industry member sponsorship, and in some cases even joint advertising between suppliers and retailers, the tied-house restrictions prohibiting “pay to play” still apply.
Please contact Bahaneh Hobel (bhobel@dpf-law.com) or John Trinidad (jtrinidad@dpf-law.com) if you are considering sponsorships or promotional relationships to ensure that both your participation and marketing are compliant.
In our blog post on the issue of enforceability of the producer’s lien in bankruptcy , we noted the current difficult and uncertain wine market environment. Since that post, the market has not changed much. Given the risk that a lawsuit against a winery on the brink of insolvency may push it into bankruptcy, and the uncertain treatment of the producer’s lien in a winery bankruptcy, we’ve been asked by grape growers about alternative methods of attempting to collect payment from a delinquent winery. This post discusses the use of the California Department of Food and Agriculture (“CDFA”) complaint process as one such potential alternative. As explained below, although this process is an administrative procedure in the nature of alternative dispute resolution, rather than a lawsuit, it is likely to be taken seriously by respondent winery.
Basic Background
Processors of agricultural products, including processors that handle and process wine grapes (i.e., wineries), are required to be licensed by the CDFA. Cal. Food & Agric. Code §§ 55521, et seq. Such licensure is in addition to any other licenses that may be required, for example, a winegrower license issued by the California Alcoholic Beverage Commission, or a winery permit issued by the federal Alcohol and Tobacco Tax and Trade Bureau. Thus, if a winery engages in a violation of the so-called Processors Law, Cal. Food & Agric. Code §§ 55601, et seq. , it may be subject to investigation, censure and punishment by the CDFA.
There’s an app – or at least a government agency – for that
The Processors Law governs wineries and other entities that buy and process agricultural products, including grapes. Under the California Food and Agricultural Code, the failure to pay a grape grower is primarily regulated under the Processors Law. This legal remedy is separate and apart from a breach of contract remedy under the contract (grape purchase agreement) and common law.
The CDFA has a branch – aptly called the Market Enforcement Branch (“MEB”) – dedicated to enforcement of the Processors Law, so as to ensure confidence and stability in the agricultural marketplace and to protect against unfair business practices between producers, handlers, and processors of California farm products.[1]
Among other things, the MEB processes complaints filed by agricultural product producers.[2] Violations of the Processors Law that are relevant to grape growers may include, for example: failure to pay in full, Cal. Food & Agric. Code § 55872; failure or refusal to make timely payment as specified in the contract, Cal. Food & Agric. Code § 55878; and failure or refusal to render a true and correct account of sales or to pay for farm products received on consignment, Cal. Food & Agric. Code § 55879.
Among other remedies, the processor/winery risks revocation of its processor’s license (which is required for a winery to operate), see , e.g. , Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 Cal.App .3d 699, 705, as well as imposition of late charges and administrative fines. Accordingly, wineries tend to take MEB investigations very seriously.
So how do I complain?
To file a complaint for failure to pay, grape growers must submit a Verified Complaint [3] to the MEB along with the relevant filing fee (the amount of the fee is based on the value of the debt). Note that any verified complaint must be filed not later than nine months from the date a complete account of sales was due.[4] Cal. Food & Agric. Code § 55745. Make sure to include copies of all contracts, invoices, bills of lading, and relevant correspondence, all in duplicate. Instructions and additional information about the complaint process are available on the MEB website, https://www.cdfa.ca.gov/mkt/meb/complaint_process.html .[5]
The Verified Complaint will be served on the respondent winery within five days of the date on which a signed verified complaint, the filing fee, and the denial of federal jurisdiction are accepted by the MEB. The respondent winery will then have 30 calendar days to answer and submit its supporting documents. After receipt and review of the answer, the MEB will issue to both parties a written factual summary based on the documentation that has been filed, typically within 90 days of the date of the initial filing of the verified complaint.
During the process, it may be determined that the issues involved in the dispute can be remedied by informal mediation with a neutral and unbiased party. However, if a settlement cannot be reached within 30 calendar days after the MEB summary is issued (approximately 120 days from the date the verified complaint is accepted), and for matters involving a debt of $30,000 or less, either the complainant grape grower or the respondent winery can request expedited arbitration, before an arbitrator from a panel of arbitrators registered with the CDFA, upon payment of a $600 filing fee.[6] See Cal. Code Regs. tit. 3, § 1703.3(a); Cal. Food & Agric. Code § 56382.8(g).
Thus, the entire CDFA complaint procedure is, in essence, an alternative dispute resolution process that occurs outside of the courtroom, but under the auspices of a state agency with disciplinary powers. See Bank of Am., N.A v. Cap. Med Farms, LLC (E.D. Cal. May 6, 2025) No. 2:24-CV-02309-DJC-CKD, 2025 WL 1307793, at *1, fn. 3 (“The [California Department of Food & Agriculture] cannot issue judgments but will consider a complaint, a response, and issue factual findings that may lead to further alternative dispute resolution and/or potential disciplinary actions against licensees[.]”) As such, in comparison to litigation, the CDFA procedure is bound to be a less expensive and more streamlined option for grape growers – and possibly also more likely to result in an agreed resolution of the debt.
DP&F Senior Counsel Ory Sandel is a member of DP&F’s Litigation group.
[1] See https://www.cdfa.ca.gov/mkt/meb/
[2] Note that if a complaint involves fruit moving in interstate commerce, it must first be filed with the U.S. Department of Agriculture. In such cases, the MEB requires a letter of denial from the federal agency before the MEB will take any action. See https://www.cdfa.ca.gov/mkt/meb/
[3] “Verified”, in this case, means that the person signing the Complaint certifies that the statement of factual allegations and description of events, as well as and any attachments to the Complaint, are true and correct.
[4] The nine-month period does not include the length of time it takes to secure a written letter of denial from a federal agency. See id. ; see footnote 2, supra .
[5] The following is by way of general summary only, and should not be relied on in any MEB proceeding. Specific regulations applicable to MEB investigations and procedure may be found in Chapter 2.2 of Division 3 in Title 3 of the California Code of Regulations, Cal. Code Regs. tit. 3, §§ 1702 et seq. As with all posts on DP&F’s blog, this post does not constitute legal advice.
[6] See Cal. Code Regs. tit. 3, § 1703.3; see also https://www.cdfa.ca.gov/mkt/meb/Forms/New%20forms/Expediated%20Arbitration%20Pamphlet%20_5-07_.pdf
If you have any connection to the Northern California wine industry, you know that glassy-winged sharpshooters (GWSS) were found on grapevines sold at Costco locations in Northern California between April 21 and May 21 of this year. The most recent press release from the California Department of Food and Agriculture (CDFA) is available here.
This is a serious development. These tiny leafhoppers efficiently spread the bacterium Xylella fastidiosa, which is deadly to grapevines, as well as citrus, landscape plants, and many other plant species. The bacterium invades the plant’s xylem (water transport system), is fatal to the plant, and has no known cure. When it infects grapevines, it is called Pierce’s Disease.
If you or someone you know purchased a grapevine, citrus tree, or other fruit tree from a Costco in one of the 24 affected counties (consult the CDFA’s alert page for the county list), follow the instructions from the CDFA, available here, and contact your local County Agricultural Commissioner’s Office promptly. Early detection and rapid response are critical to prevent further spread.
There are online resources to help identify GWSS in its various life stages. However, especially if you live in a wine-producing region, suspected GWSS should be reported promptly to your local County Agricultural Commissioner rather than handled individually, and California has a robust program in place to keep GWSS out of vineyards.
With that in mind, this is an opportune time to highlight the legal framework California has maintained since 2000 to combat this risk to the wine industry, the public–private collaboration that has mitigated past outbreaks, and the tools that enable an effective response when incidents like the recent Costco breach occur.
California’s Pierce’s Disease Control Program (PDCP)
California established the Pierce’s Disease Control Program (PDCP) by legislation (SB 671) signed into law in May 2000, following widespread grapevine deaths in Southern California during the summer of 1999. (Source)
PDCP’s mission is to prevent and contain GWSS and Pierce’s Disease through coordinated statewide and county efforts, including diagnostics, biological control, and research. PDCP brings together CDFA and USDA personnel; County Agricultural Commissioners; growers and wineries represented on the Pierce’s Disease and Glassy-winged Sharpshooter (PD/GWSS) Board; vineyard managers; universities and other researchers; and the nursery and citrus industries. The program is led by a statewide coordinator and supported by staff throughout California. Counties carry out local activities under county work plans submitted to CDFA for approval. PDCP is funded by USDA Animal and Plant Health Inspection Service (APHIS), an assessment on California winegrape growers, and, at times, the State General Fund.
PD/GWSS Board and the Assessment Fund
Assembly Bill 1394 (July 2001) established an annual, value-based assessment on crushed grapes to fund PD/GWSS research and related activities, and also established the PD/GWSS Board of representatives from the winegrape industry to advise the CDFA Secretary on use of the funds raised by the assessment. The funds primarily support research on Pierce’s Disease, as well as other pests and diseases that affect vineyards.
The grower assessment is currently $1.25 for every $1,000 of the value of grapes delivered for crushing, and it is owed entirely by the grape grower. Although the grower bears the cost, the purchaser of the grapes is responsible for collecting the assessment and remitting it to CDFA, with payment due by January 31 each year for the previous year’s harvest. In practice, many purchasers withhold the assessment from amounts otherwise payable to the grower, while others may choose to absorb the cost. To avoid confusion, grape purchase agreements often include a clause authorizing the purchaser to withhold the assessment from grower payments and remit it to CDFA. Processors crushing under 100 tons are not exempt from these requirements.
Every five years, grape growers vote on whether to continue the assessment. In the most recent referendum, 76.56% of eligible grape growers voted in favor, extending the program through 2031. The next vote is scheduled for Spring 2030, and ballots will be sent to every producer who paid the 2029 assessment.
Elena Moreno is an Associate Attorney in DP&F’s Business group. If you have legal questions about this topic or would like assistance with a grape purchase agreement, please contact us.
What should you do when copyright owners come a-knockin’?
Wineries throughout Sonoma and Napa Valley have recently received legal notices from copyright owner groups, threatening legal action for unauthorized live and recorded musical performances in their tasting rooms, etc. which feature songs subject to copyright protection.
The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) are two of the most prominent performance rights organizations which collect license royalties for the public performance of musical works in their catalogs. Public performance is defined broadly under the Copyright Act to include both live performances (aka “covers”) and recorded music played on the radio, on television, or online (e.g., via streaming services without a business account). Performance rights organizations are well-known for bringing suit when their on-the-ground surveillance reveals that a commercial establishment is allowing public performance to take place without an appropriate license.
Since tasting rooms are commercial establishments which fall outside of the private listening license that typically applies when you purchase music, playing music in a commercial environment (i.e., outside the “normal circle of friends and family”) constitutes an actionable copyright infringement of the public performance right of the copyright owner. Businesses that fail to pay the licensing fees of the copyright owner society (such as ASCAP) will be liable for copyright infringement, potentially including an award of the plaintiff’s attorneys’ fees. See e.g., https://www.ascap.com/press/2026/03/3-10-venues-refuse-to-pay-songwriters
If you have not yet been contacted by ASCAP or BMI and know that you are not in compliance but still want to play music in your tasting room, your best strategy would be to subscribe to a streaming service for businesses that will cover licensing obligations with ASCAP and BMI, such as Sirius XM for Business or Pandora for Business. (Note that such plans typically do not cover paid entry or dancing.)
Chris Passarelli is a partner in DP&F’s Intellectual Property group with experience in copyright and trademark issues facing the food & beverage, hospitality and entertainment industries.
Recent news headlines out of France regarding wine barrel management and leasing mainstay H&A Group have sparked concerns within the global wine industry, with potential significant impacts to the domestic and local wine industry’s barrel financing programs.
H&A, a Bordeaux‑based barrel leasing company with a substantial international footprint, has reportedly been placed into judicial liquidation by the Bordeaux Commercial Court in early April, after unsuccessful restructuring efforts.[1] With thousands of clients worldwide—including wineries in California—the liquidation of H&A may have significant legal, financial, and operational implications for wine producers that relied on its barrel leasing and financing structures.
For approximately two decades, H&A operated as a specialized financer of wine maturation, allowing wineries to access barrels without the need for substantial upfront capital expenditures. Through barrel lease and resale agreements, H&A worked with cooperages and wineries across France, Italy, Spain, and the United States, including California, reportedly serving more than 2,000 clients.[2] In late March, H&A announced that it could no longer continue its activities, leaving many barrel suppliers unpaid and looking to the winery recipients for payment. The company has also reportedly stopped taking back used barrels from winegrowers or reimbursing wineries for overpayments.[3]
These confusing arrangements were often integrated into broader winery financing strategies, with barrels contemplated not only as production assets but also as balance‑sheet tools. In many instances, the financial structure of the leasing agreements created assignments to various lending institutions, raising immediate questions to wineries and suppliers alike, such as: Who owns the barrels in use? Can barrels be reclaimed or resold? Are lease payments still due, and to whom?
As a result, H&A’s liquidation is not merely a supplier disruption—it is a multi-level financial event that may directly affect ownership rights, collateral structures, and contractual obligations. Latest reports from France indicate that while the Bordeaux Commercial Court approved the company’s placement into judicial liquidation, H&A may continue operating until May 31, 2026. A new hearing is reportedly scheduled for April 28 at the Bordeaux Commercial Court.[4]
Given the uncertainty and potential exposure, wineries with current or prior H&A relationships should consider:
Reviewing all barrel lease, purchase, and financing agreements, including choice‑of‑law, ownership, payment obligations, assignments, and termination provisions;
Preserving records of payments, invoices, and communications with H&A and barrel suppliers;
Assessing insurance coverage and risk allocation for leased barrels;
Avoiding unilateral actions (such as disposing of barrels or altering payment structure) without legal advice; and
Monitoring developments in the French proceeding and any corresponding U.S. filings.
At DP&F, we regularly advise wineries, growers, and industry participants on complex commercial arrangements, disputes, and related risks. We are closely monitoring developments relating to H&A’s judicial liquidation, domestically and abroad, as well as its potential implications for U.S. and California wine industry participants. If your winery has questions about barrel ownership, lease obligations, or risk exposure related to H&A—or if you would like assistance reviewing your agreements—we encourage you to contact counsel.
DP&F Partners Melissa Granillo and Joshua S. Devore are actively working with winery clients on this matter and may be able to assist you.
This post is provided for general informational purposes only and does not constitute legal advice.
As the newly crowned NCAA basketball national champions make their media rounds, you might think that NIL is just about athletes getting paid to play. But NIL is a legal concept that encompasses an individual's right of publicity and allows all individuals, not just student-athletes, to control and profit from the commercial use of their identity
NIL, short for Name, Image, and Likeness, has grown far beyond endorsement deals for athletes. It’s about the core pieces of your identity: your name, your face, your voice, and the ways you present yourself to the world. In a digital world where anyone can build an audience (or be impersonated by AI), those things have real value for everyone.
On March 26, 2026, the U.S. Patent and Trademark Office (USPTO) launched a new resource page that centralizes guidance on navigating name, image, and likeness in connection with trademarks and related intellectual property issues. This is a helpful first stop for understanding how branding and trademark registrability intersect with NIL—and why intellectual property strategy matters when your identity is part of your business.
For decades, NIL rights were mostly associated with celebrities. But the internet changed that. Today, anyone can build an audience, create content, or have their image shared widely—sometimes without their knowledge. Therefore, NIL matters even if you’re not signing endorsement deals.
Whether you’re posting on social media, running a small business, or simply appearing in photos your friends share, your identity is out there. NIL gives you a framework for understanding when and how others can use it. Additionally, artificial intelligence (“AI”) tools can now generate realistic images, voices, and videos. That means your likeness can be imitated or misused more easily than ever.
You may have heard that Matthew McConaughey recently filed multiple federal trademark applications tied to his identity. Why does this matter? Because such filings highlight a strategy to safeguard his identity and its commercial value. McConaughey’s attorneys have said that the registrations are meant to combat unauthorized AI apps or users from simulating McConaughey’s voice or likeness without permission.
It's important to note, however, that while NIL rights and trademark rights are related, they’re not the same. NIL protects your identity itself—your name, face, voice, and other personal attributes. Trademarks protect your brand—the source of your goods or services. For many people, the strongest protection comes from utilizing both legal protections where possible. If you’re building a business, creating content, and using your persona as a brand in association with a particular product or service (e.g., CONAN O’BRIEN NEEDS A FRIEND for podcast services), a trademark or service mark registration can help you control how your name, logo, or other brand elements are used in commerce.
NIL is no longer just a sports‑law buzzword. It’s a practical concept that affects anyone who participates in the modern digital world. Whether you’re a student, an athlete, a professional, a creator, or a business owner, your identity has value. Understanding NIL helps you protect that value, make informed decisions, and avoid problems down the road.
For more information about NIL and trademarks/service marks or to discuss intellectual property strategies with our Intellectual Property team, reach out to Joy Durand or Allison N. Berk.
The U.S. Department of Agriculture (USDA) is offering up to $1 billion of financial aid to American producers of certain specialty crops, including growers of wine grapes, through its new Assistance for Specialty Crop Farmers (ASCF) program. Per USDA’s recent press release, the goal of the ASCF program is to “help address market disruptions, elevated input costs, persistent inflation, and market losses from foreign competitors engaging in unfair trade practices that impede exports.”
USDA’s Farm Service Agency (FSA) is responsible for administering the ASCF program and will issue one-time bridge payments to qualifying farmers. To be eligible for an ASCF payment, specialty crop producers must meet the following requirements:
- Be actively engaged in farming;
- Have risk and interest in the eligible planted commodity; and
- Report 2025 planted acreage to FSA by 5 p.m. ET on March 13, 2026.
ASCF payments will be calculated based on reported 2025 planted acres, and commodity-specific rates for ASCF payments are expected to be released by the end of March. The first step for reporting 2025 planted acreage is to email the completed USDA Form AD-2047 (a fillable PDF copy of this from can be found at https://www.fsa.usda.gov/documents/ad-2047) with proof of ownership (deed of trust), lease(s), or property tax statement for the applicable parcel of farmland to your local FSA office (FSA.Vacaville.ca@usda.gov for Napa County).
After submitting the 2025 acreage report, eligible producers must then apply for an ASCF payment online at Login.gov or in-person at their local FSA office. The local FSA office address and contact information for Napa County is provided below. Local offices for other counties can be found at https://www.farmers.gov/working-with-us/service-center-locator.
Vacaville Service Center, Farm Service Agency Office
Attn: Gizela Meirinho Gover
810 Vaca Valley Parkway
Vacaville, CA 95688
E-mail: gizela.gover@usda.gov
Phone: (707) 448-0106
For additional information regarding the ASCF program, please visit www.fsa.usda.gov/fba or contact your FSA county office for further assistance.
On February 20, 2026, in a victory for American beer, wine, and spirits importers, the Supreme Court in Learning Resources, Inc. v. Trump, 607 US ____, Slip Op., February 20, 2026 (“Learning Resources”) struck down President Trump’s imposition of tariffs under the International Emergency Economic Powers Act (“IEEPA”). The Trump administration had used IEEPA to justify certain tariffs imposed on imported goods from various countries in 2025, including beer, wine and spirits.
Despite the decision in the importers’ favor, no one is popping the Champagne quite yet. First, while the Court’s opinion invalidated the Trump administration’s IEEPA tariffs, it has no effect on the administrations’ ability to rely on other statutes to impose tariffs. Second, on the same day that the Supreme Court issued its decision, the President issued a proclamation imposing a 10% worldwide tariff under a different federal law (discussed in more detail below). This new tariff is set to go into effect for a 150-day period starting at 12:01am EST on Tuesday, February 24. Then, over the weekend, the President announced on social media that this new tariff was being increased to 15%, though as of this writing, no new official proclamation has been issued. Finally, there is significant uncertainty regarding how and when importers will be refunded for tariff payments previously paid on these unconstitutional IEEPA tariffs. Indeed, administration officials have signaled that they will wait for a court order before they specify a tariff refund process.
In short, alcohol beverage importers will continue to have the unenviable task of navigating their business through tariff and trade uncertainty for the foreseeable future. We have included guidance from the National Association of Beverage Importers below on potential next steps, but ultimately, importers should seek advice from experienced trade counsel on these fast-moving issues.
Case Background
As background, IEEPA grants the President the authority “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the president declares a national emergency with respect to such threat.” IEEPA expressly grants the President the right to “regulate…importation or exportation of…any property in which any foreign country or a national thereof has any interest...”
Shortly after taking office, President Trump declared a national emergency with respect to two stated foreign threats: (i) drug trafficking into the United States at the northern and southern United States borders, specifically the influx of illegal drugs from Canada; and (ii) “large and persistent” trade deficits with other countries, which the President argued undermined American manufacturing. The President subsequently imposed a 10% tariff on nearly every county in the world, and higher tariffs on key U.S. trading partners including Canada, Mexico, China, the European Union, Japan and South Korea, citing his right to regulate importation under IEEPA.
The IEEPA tariffs disrupted and burdened the already struggling beverage alcohol industry by creating widespread uncertainty amongst importers, affecting cross-border sales, and eventually driving up prices for imported products.
Learning Resources and Hand2mind, two family-owned educational toy companies, filed suit in the U.S. District Court for the District of Columbia challenging the constitutionality of the IEEPA tariffs and arguing that the statute did not authorize the President to impose tariffs. In a separate action, V.O.S. Selections, a New York based wine and spirits importers, and four other small businesses filed suit in the U.S. Court of International Trade (“CIT”) raising similar arguments to those made by plaintiffs in the Learning Resources case. The plaintiffs in both cases prevailed. In Learning Resources, the administration filed an appeal with the D.C. Circuit Court of Appeals, and plaintiffs quickly filed a petition for certiorari before judgment, and the Supreme Court granted the petition. In VOS Selections, the Federal Circuit Court of Appeals affirmed the CIT decision in favor of the plaintiffs and the government filed a writ of certiorari to appeal the decision to the Supreme Court. The Supreme Court consolidated the appeals in both cases and heard oral argument on November 5, 2025.
In the consolidated Learning Resources decision, the Supreme Court held that the IEEPA does not grant the President the authority to impose tariffs. The majority first acknowledged that the power to impose tariffs is a taxing power delegated to Congress under Article I of the Constitution and therefore has “unique importance.” As the Court stated, because these taxing powers are typically reserved to Congress, “[w]hen Congress grants the power to impose tariffs, it does so clearly and with careful constraints.” See Learning Resources, Slip Op. at 17. Although IEEPA grants the President the power to “regulate” importation, the Court held that “regulate” under IEEPA does not include the power to impose taxes or tariffs because Congress did not provide clear congressional authorization granting the President the specific right to impose taxes or tariffs in IEEPA. See Learning Resources, Slip Op. at 15-17. In making these statements, the Court made clear that tariffs imposed on imported goods are a form of taxation on United States importers, and absent clear congressional direction otherwise, this is a power reserved to Congress. See Learning Resources, Slip Op. at 17.
Non-IEEPA Tariffs and New Tariff Announcements
Although the Court’s decision invalidated the Trump administration’s IEEPA tariffs, importers are unfortunately not yet out of the woods with respect to global tariffs. The Court’s decision in Learning Resources focused specifically on IEEPA tariffs, leaving the dispute between the United States and Canada with respect to tariffs imposed under Section 232 of the Trade Expansion Act of 1962 largely undecided.
Additionally, the Trump administration has made clear it will continue its tariff strategy by relying on alternative statutory support. In fact, as noted above, shortly after the issuance of the Court’s opinion on Friday, President Trump signed a Proclamation (“Imposing a Temporary Import Surcharge to Address Fundamental International Payments Problems”) imposing a temporary 10% global “surcharge” under Section 122 of the Trade Act of 1974. This provision allows a president to impose an “import surcharge” of up to 15% for up to 150 days (absent Congressional approval for extension) to address problems caused by “fundamental international payments problems” or “serious United States balance-of-payments deficits.” The next day, the President declared in a social media post that the new tariff would go up to 15% effective immediately, but no new proclamation or more official action has taken place as of the publication of this post. It is possible that importers will also challenge Section 122’s applicability and whether its requirement for a “balance-of-payments problems” is met by virtue of the deficits with other countries but that remains to be seen.
For good measure, the administration is laying the groundwork for tariffs under Section 301 of the Trade Act of 1974. That provision grants the U.S. Trade Representative (“USTR”) the ability to impose tariffs if an investigation determines that “the rights of the United States under any trade agreement are being denied” or “an act, policy, or practice of a foreign country…is unjustifiable and burdens or restricts United States commerce.” The USTR announced that it is initiating “several” such investigations “to deal with unjustifiable, unreasonable, discriminatory, and burdensome acts, policies, and practices by many trading partners.”
Uncertainty Regarding Tariff Refund Process and Timing
While the Supreme Court ruled that the IEEPA tariffs were unconstitutional, it did not provide any guidance on the process by which refunds should be issued. In his dissent, Justice Kavanaugh predicted consequential refund chaos, writing: “The United States may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others. As was acknowledged at oral argument, the refund process is likely to be a ‘mess.’”
Now that the Supreme Court has weighed in, one would think that importers are entitled to a refund for payments made in response to the unconstitutional IEEPA tariffs. Indeed, the government has on multiple occasions in front of multiple courts, expressly stated that importers would have a right to refunds should the tariffs be deemed unconstitutional. For example, in opposing plaintiffs’ motion for a preliminary injunction in the Learning Resources case before the District Court, the government stated, “[E]ven if a stay is entered and defendants do not prevail on appeal, plaintiffs will assuredly receive payment on their refund with interest.” Learning Resources, Inc. v. Trump, No. 25-cv-01248 (D.D.C. filed Apr. 22, 2025), June 2, 2025, ECF No. 41. The CIT included a laundry list of similar government statements in footnote 1 of this decision. Accordingly, in any court action, the government would appear to be judicially estopped from arguing that importers are not entitled to refunds.
The executive branch, however, appears unwilling to make the road to refunds efficient or easy for U.S. importers. During an interview on Sunday, Treasury Secretary Scott Bessent claimed that the Supreme Court had remanded the question of refunds to the lower court. On the same day, U.S. Trade Representative Jamieson Greer stated the Court of International Trade will “have to step in and give some direction on how they want [tariff refunds] to be done.” And President Trump himself signaled that the process of tariff refunds could take years of litigation. Indeed, in an election year, the issue of tariff refunds may become a political football. Congressional Democrats are pressing the administration to provide a detailed explanation of how it will process tariff refunds, and administration officials have stated that refunds would constitute a “corporate boondoggle” for importers that have raised prices on down-stream purchasers (including consumers).
There are several moving pieces, and it is unclear whether importers will simply be able to rely on an administrative process to seek refunds, or whether they will have to file suit before the CIT in order to do so. Earlier today, the National Association of Beverage Importers (NABI) provided members with the following input regarding refunds (reprinted here with permission from NABI):
Refunds were not addressed by the Supreme Court’s majority, but when a tax is found unconstitutional, the money collected under that tax is refundable, unless the court expressly limits its holding to the parties. The court did not do that, so under ‘normal’ circumstances importers are entitled to refunds (plus interest). That is not to say that refunds will be automatic—they are not. The president hinted during his Friday press conference that refunds would need to be sought through litigation, though there is similarly nothing that indicates litigation is required across the board.
The standard refund process is either a post summary correction (PSC) for those entries which have not liquidated, and will not liquidate for at least 15 days. The standard refund process for entries which have liquidated is to file a protest.
There are unknowns with either route, and no guarantees for approval, but the costs of filing either a protest or a PSC are relatively low and would serve as the starting point for potential future litigation, should importers seek to file claims with the CIT. At this time, however, importers should be considering internally, and/or with counsel, whether they should submit through the standard Customs process to preserve their rights to a refund. Most tariffs paid on alcoholic beverages should not yet be liquidated so many entries should be ‘refundable’ via PSC.
DP&F will continue to monitor both the IEEPA refund question and the Trump Administration’s pursuit of alternative statutory authorities in support of a new tariff agenda and will publish updates as this matter evolves.
For further questions regarding IEEPA tariffs and potential refunds, or other alcohol beverage matters, please reach out to DP&F’s Alcohol Beverage Law and Compliance team.
Thank you to Andrea Nappi Conforme, President of the National Association of Beverage Importers (NABI) for assistance in reviewing this blog post with our DP&F Alcohol Beverage Law and Compliance team and in allowing us to incorporate information they previously sent to NABI members. NABI is a national trade association representing U.S. importers of beer, wine and distilled spirits. For more information about NABI or membership inquiries, please contact NABIpresident@bevimporters.org.
This blog post summarizes the process by which licensed wineries can obtain local government approval for events in Napa County held pursuant to their California Department of Alcoholic Beverage Control (“ABC”) Type 93 Estate Tasting Permit.
As discussed in our prior post, last year Governor Newsom signed into law AB720, granting California wineries that hold an ABC Type 02 winery license the ability to host events, up to 36 times per year, where they exercise tasting room privileges for wine manufactured by or for the winery on either: (1) property adjacent to the licensed premises or (2) a nonadjacent vineyard provided that such property or vineyard is owned by or under the control of the winery. (Cal. Bus. Prof. Code 23399.03.) Neither ABC nor Napa County have provided guidance as to what degree or proof of “control” is required.
Under AB 720, these new Type 93 estate tasting events are also subject to local land use controls that can “restrict, but not eliminate” the privileges granted under the ABC Type 93 Permit. Local governments have been weighing what restrictions, local permits, or authorizations are required to conduct events on vineyards located within their boundaries.
On December 16, 2025, the Napa County Board of Supervisors approved an 18-month pilot program to implement AB 720, which requires wineries wishing to conduct such events to obtain a local permit and includes certain parameters and restrictions on how such events are conducted. Here’s a run down of the application process and restrictions.
How to Apply for a Napa County Type 93 Permit
Note up front that a threshold aspect of Napa County’s implementation, discussed in more detail below, is that the property used for the Type 93 event must be on a separate parcel from the permitted winery. That means that if you own a parcel in Napa County and your Type 02 winery is located thereon, you must comply with your current use permit for events and tastings conducted on that parcel rather than make use of the 36 Estate Tasting events otherwise allowed by AB720.
Otherwise, existing Type 02 license holders can now apply online for a permit to host limited outdoor wine-tasting events on certain vineyard property pursuant to their ABC Type 93 Permit. We refer to that local permit in this blog post as the “Napa Type 93 Permit.” This pilot program expires on July 1, 2027, but could be extended by the Napa County Board of Supervisors.
The Napa County application is live and can be accessed by visiting the Napa County Online Permit Center and selecting “Start a New Application” under Napa County Fire. Each Type 93 application must include the following 4 items:
Annual Local Type 93 Permit Application: signed by the property owner or authorized operator, including primary and secondary contacts responsible for all events.
Valid ABC License: a copy of current Type 02 ABC license will suffice.
Fire and Safety Acknowledgment Form.
Aerial Site Map: to show property boundaries, agricultural and/or commercial access roads, emergency access routes (including the minimum 14-foot clearance and required turnouts/turnarounds per County standards), event activity areas, and parking areas outside emergency lanes.
The Napa County Fire Marshal’s Office will charge a flat fee of $343 for review, processing, and safety evaluation. This flat fee will be charged per application, which is specific to a vineyard parcel. This is in addition to the ABC fees referenced in DP&F’s blog post published on January 22, 2026. In total, a winery seeking to use all 36 events on one vineyard parcel in Napa County would incur Type 93 related fees (ABC and County) of $4,158.
The Napa Type 93 permit will be valid for one calendar year (from January to December). The permit must be renewed annually. Note that each event must be separately applied for with ABC, but not with Napa County.
Napa Type 93 Permit Compliance and Approval
Continued compliance with applicable ABC regulations, and other state or local provisions, remains necessary. Napa Type 93 Permit approval does not imply compliance with or approval of any other federal, state, or local law or regulation. Permit holders remain solely responsible for ensuring all event activities comply with such laws and regulations, and need to sign a form attesting that they will do so.
Approval of the permits by both ABC and the Napa County Fire Marshal does not override or impact the restrictions or limitations of any use permit or winery entitlement on the winery parcel separate from the vineyard used for the Type 93 events.
Limitations Placed on Napa Type 93 Permit Events
The Napa County Fire Marshal’s Office has published important limitations and parameters that ABC Type 93 Permit holders must abide by:
A permit holder can host up to 36 events per calendar year (consistent with the ABC Type 93 permit restrictions) with a maximum of 49 attendees per event, including staff and guests.
Each event must occur within one calendar day and can only be held during daylight hours. However, not all attendees must be present at the same time – there could be multiple smaller groups throughout the day so long as total attendance does not exceed 49 persons.
Events may not take place during days subject to Red Flag Warnings set forth by the National Weather Service and CAL FIRE.
Events may not take place inside structures requiring a permit, including residences, barns, tasting rooms, event buildings, enclosed structures, or temporary tents/structures. However, smaller (under 120 sq. ft.) structures not requiring building permits such as pop-up shade tents may be used.
All events must comply with Napa County land use regulations, fire and life-safety requirements, and applicable agricultural road standards.
All vehicle circulation must maintain unobstructed emergency access, including a minimum 14-foot clear width and all required turnouts.
Each event must remain below a total of 40 Average Daily Trips (“ADT”; or daily vehicle trips); meaning 20 vehicle round-trips total, including staff and guests.
Napa County’s Pilot Program currently prohibits wineries from hosting Type 93 events on parcels on which their ABC licensed premise is located.
As noted above, Napa County has interpreted AB 720’s requirement that the Type 93 event take place on “adjacent” property to mean a separate legal parcel from the licensed winery. Thus, in Napa County, Type 93 events are allowed only if the vineyard, or property on which the event is to be held, is on a separate parcel from the winery itself. Wineries otherwise must continue to operate consistent with their existing use permit restrictions on marketing events on those permitted winery parcels.
This means that producers that own only one parcel with a winery use permit in Napa County are not able to exercise the privileges granted under ABC Act Section 23399.03(a)(1) on that parcel. One of the statute’s proponents, the Wine Institute, has noted it disagrees with that interpretation. Tim Schmelzer, vice president of California State Relations for the Wine Institute, has been quoted as stating: “The intent for AB720 (was) to cover any vineyard next to the licensed premises so long as it is owned by or under the control of the licensee,” he said. “I’d not previously heard anyone mention this separate parcel issue.” Jess Lander, A new California law aims to help the struggling wine industry. Will it work? (S.F. Chronicle Jan. 7, 2026.)
As Napa County is currently operating the Local Type 93 permit program as an 18-month interim pilot program, feedback on the implementation will be taken and it will be revisited in the near future.
For more information on the new Napa Type 93 Permit and the application process, please contact DP&F’s Land Use and Alcohol Beverage Law and Compliance groups.