In their opinions: All you ever wanted to know about 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.”

— 6th U.S. Circuit Court of Appeals Judge Boyce Martin Jr., writing in Maker’s Mark Distillery, Inc. v. Diageo North America. Inc., et al.

At the heart of this trademark case is not possible confusion between plaintiff’s bourbon and defendant’s tequila.

Only someone with an atrociously bad palate would mistake one for the other.

At issue is how the parties package their spirits.

Maker’s Mark bourbon features a distinctive drip of red sealing wax on the outside of its bourbon bottles. The distiller has been using that since 1958 and registered it as a trademark in 1985. Maker’s Mark marketing efforts focus heavily on the red wax seal.

Jose Cuervo distills a premium tequila. Beginning in 2001, Cuervo began selling the tequila in the United States, packaged in bottles that first bore dripping red sealing wax on the outside. After Maker’s Mark sued Cuervo for trademark infringement, Cuervo kept using red sealing wax but without the drips.

Martin eventually got to the legal meat-and-potatoes – the district court correctly issued a permanent injunction barring Cuervo from using red dripping sealing wax – but not before engaging in an extended discussion about whiskey in general and bourbon in particular.

Martin, who was born in Boston but settled in Kentucky, where the bulk of the world’s supply of bourbon is produced, used the case as an opportunity to do some extended research on “bourbon’s unique place in American culture and commerce.”

It’s a fascinating story, which includes such nuggets as the competing claims of who first distilled bourbon – some say it was a Baptist minister, others believe it was produced at the first European settlement in what is now Kentucky. Martin recounts the legal battles over what can be called bourbon, which eventually led to an act of Congress to settle the matter.

Martin obviously enjoyed the topic.

As you would expect, the opinion was silent on whether he enjoys the product.