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.
