The American Spectator

By all accounts, it’s been a bumpy week in the news.

The question of gay marriage clearly topped the charts with the president fighting his post hoc war of words against voters in the Tar Heel state. The CIA mobilized its double-agents to sniff out the next generation in underwear bombs. Meanwhile, in Damascus, Syria witnessed a steep uptick in violence, while a Russian commercial jetliner slammed into the side of an Indonesian volcano. At the polls, France broke left, and Greece broke bad. On the bright side, however, I’m very much looking forward to spending some old drachmas on my next trip ‘round the Aegean, because there’s no chance the Eurozone survives this latest mess.

Until then, I’ll have to lean on something a little closer to home to pass these troubled times. Although native to the Philadelphia ‘burbs, I’m a lifelong fan of Kentucky bluegrass and the commonwealth’s homegrown blends of corn-mashed bourbon. Sipping a dram of that charred-oak cocktail, smashed with mint and simple-syrup, is an annual treat when the three-year-olds Run for the Roses. This year, I’ll happily admit I didn’t lose any money, but a couple juleps cost me my cares.

So it was with great pleasure that I read this morning that the owners of Maker’s Mark, my go-to brand when it comes to the brown stuff (“On the rocks, splash of water, thank you.”), won a major victory at the Sixth Circuit US Court of Appeals. Judge Boyce Martin ruled that the iconic red wax seal, dripped on the Marker’s Mark bottle, is protected “trade dress,” and, as such, it’s shielded from imitation, duplication, copycats and clones.

As the Wall Street Journal’s Joe Palazzolo (big h/t) notes, Judge Martin clearly reveled in his historic defense of our native spirits and, frankly, the American way. His opinion opens:

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.” 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 Familiatequila bottles. We hold that it is. The judgments of the district court in this trademark infringement case are AFFIRMED. 

At question was the right of the Jose Cuervo family of spirits to sell its top-flight tequila in the States, sporting a seal that wept tears of wax — in the same fashion as the Maker’s Mark bottle. For the Samuels family of Loretto, KY — who’ve owned and operated the Kentucky distillery for centuries — the approximation proved too close for comfort. The Sixth District Court agreed.

So, today, amidst all that’s wrong in the world, here’s to our legal system, and a small victory for an American tradition over a foreign facsimile.

I think we can all drink to that.