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Sixth Circuit Grants Wax Seal to Maker’s Mark in Bourbon-Soaked Decision


by Publius
Posted May 09, 2012, 11:19 AM

The AP reports on an unusual Sixth Circuit Court of Appeals decision regarding one of the most famous distillers of bourbon:

A federal appeals court has ruled that Maker's Mark holds the trademark on the dripping wax seal atop its bottles.

The U.S. 6th Circuit Court of Appeals on Wednesday upheld a lower court ruling granting the Kentucky bourbon maker a trademark on the seal, which serves decorative purposes only.

The decision comes in a case brought by London-based Diageo North America and Casa Cuervo of Mexico, which used a dripping red wax seal on special bottles of its Reserva tequila. U.S. District Judge John G. Heyburn II in 2010 granted Maker's Mark's request for an injunction stopping other liquor companies from using the seal.

The entertaining decision, written by Judge Boyce F. Martin, Jr. of Kentucky, includes a wealth of material on the history and nature of bourbon:

Justice Hugo Black once wrote, “I was brought up to believe that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon.” Dep’t of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 348-49  (1964) (Black, J., dissenting). While there may be some truth to Justice Black’s statement that paints Kentucky bourbon as such an economic force that its competitors need government protection or preference to compete with it, it  does not mean a Kentucky bourbon distiller may not also avail itself of our laws to protect its assets. This brings us to the question before us today: whether the bourbon producer Maker’s Mark Distillery, Inc.’s registered trademark  consisting of its signature trade dress element—a red dripping wax seal—is due protection, in the form of an injunction, from a similar trade dress element on Casa Cuervo, S.A. de C.V.’s Reserva de la Familia tequila bottles. We hold  that it is. The judgments of the district court in this trademark infringement case are AFFIRMED. . . .

The legend of the birth of bourbon is not without controversy: “As many counties of Kentucky claim the first production of Bourbon as Greek cities quarrel over the birthplace of Homer.” H.F. WILLKIE, BEVERAGE SPIRITS IN AMERICA—A BRIEF HISTORY 19 (3d ed. 1949). The generally accepted and oft-repeated story is that “the first Bourbon whiskey . . . made from a mash containing at least fifty percent corn, is usually credited to a Baptist minister, The Reverend Elijah Craig, in 1789, at Georgetown, [Kentucky],” just prior to Kentucky’s joining the Union as a state in 1792. Id. But it is more likely that Kentucky whiskey was first distilled at Fort Harrod, the first permanent European settlement in what is now Kentucky, in 1774. CHARLES K. COWDERY, BOURBON, STRAIGHT: THE UNCUT AND UNFILTERED STORY OF AMERICAN WHISKEY 3-4 (2004); accord WILLKIE, supra, at 19. Kentucky’s settlers distilled whiskey using methods similar to those “used in Scotland and Ireland for hundreds of years,” WILLKIE, supra, at 20, except that Kentucky whiskey was made mostly from corn, a crop unknown to Europeans before Columbus ventured to America. COWDERY, BOURBON, STRAIGHT, supra, at 2. Though “most [American] colonial whiskey was made from rye,” id. at 3, corn was easy to grow in Kentucky soil, and surplus corn was often used to make whiskey. Id. at 4. . . .

After Prohibition was repealed, the distilled spirits industry consolidated and matured, id. at 27, and bourbon continued to attract notable adherents. Ian Fleming, the writer who created the James Bond character that famously favored martinis, switched from martinis to bourbon as his drink of choice. John Pearson, Rough Rise of a Dream Hero, LIFE, Oct. 14, 1966, at 113, 126. And Harry S. Truman started his day with a walk followed by “a rubdown, a shot of bourbon, and a light breakfast.” Univ. of Va. Miller Cntr., Harry S. Truman: Family Life, http://millercenter.org/president/truman/essays/biography/7.




Read more here: http://www.kentucky.com/2012/05/09/2181674/appeals-court-grants-wax-seal.html#storylink=cpy

Read more here: http://www.kentucky.com/2012/05/09/2181674/appeals-court-grants-wax-seal.html#storylink=cpy

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