Maker's Mark 46

[cowdery]

With trademark law, there are no trademark police. It is the trademark owner's obligation to protect it and the only way to do that is to sue infringers. If you are lax and permit, say, one tequila to get away it, then every subsequent infringer will point to that tequila and say "they did it!" and the trademark will fall.

There was a case some years ago in which Jim Beam sued Beamish & Crawford, an Irish brewery which had been using the name "Beamish" since 1792. Jim Beam lost.

When Brown-Forman sued Constellation Brands because of similarities between Ridgewood Reserve and Woodford Reserve, Brown-Forman was able to produce memos which showed that Constellation was deliberately trying to confuse consumers by adopting such a similar name.

One of the most fascinating cases in the world of alcoholic beverages is Budweiser. Anheuser Busch essentially stole the name, but spent so much money developing it in markets such as the United States that courts have given it some but not total protection. The original Czech Budweiser is Budvar in the USA and other markets where the American Budweiser is predominant, but for all their power, AB-INBEV hasn't managed to crush Czech Budweiser in the markets where it has long been sold under that name.

Trademark law can be fascinating. One of the most famous cases was Corning suing to protect the pink color of its fiberglass insulation. Fiberglass insulation isn't naturally pink. Corning made its product a distinctive color for trademark purposes and the courts upheld it. That doesn't mean Corning owns the color pink. It just means competitors can't make their insulation the same color to trick people into thinking it's the better known brand.

The other side of the coin is trademarks that were not defended and became generic terms. Examples include laundromat, cellophane and aspirin. Owners of powerful brands like Disney, Kleenex, Levi's, Coke, etc., spend a fortune protecting their intellectual property.

If Scott owned something that valuable, he'd do the same thing. I guarantee it.

Just about anything can be made to look ridiculous if it's approached with enough vitriol, and lawyers cause enough pointless trouble to deserve the poor opinion many people have of them, but trademark law for the most part protects us, the consumers.

[CorvallisCracker]

I have no doubt that an equal amount of experimentation with a different and simpler technology (e.g., spirals) would not have produced the same results.

Oh, drat. That should have been "I have no doubt that an equal amount of experimentation with a different and simpler technology (e.g., spirals) would have produced the same results."

I also note that I misspelled "achieve", not once but twice. :bigeyes:

[CorvallisCracker]

If Scott owned something that valuable, he'd do the same thing. I guarantee it.

Of course I would, if I believed something someone was doing actually represented a threat to what I have. I also guarantee I would apply more common sense to that decision than did MM did to theirs.

I cannot imagine any argument that would persuade me that there would have been a single instance of non-sale of a bottle of MM had they left well enough alone. But you're welcome to try.

[sailor22]

It really is about defending the brand. They can't have anyone pointing back and saying "you let them do it". If I recall correctly the law demands continuous and vigorous defense of a trademark or defining characteristic in order for it to have legal protection.

That's why Disney sues third grade teachers to stop using Mickey Mouse on the bulletin board and why you see other seemingly gratuitously ugly and mean spirited suits.

Doesn't mean we have to like it ----- The one that still sticks in my craw is what Anheuser Busch did to Bush Pilot - sued them out of business - and I didn't see any crossover infringement. We lost a mighty good whiskey in that deal, and it has kept me from buying an Anheuser Busch product ever since.

[smokinjoe]

IMO, Maker's Mark spent good money defending their very valuable brand. Diageo, is the pisser away of money, here. Dontcha think somebody at Diageo mighta said: "Uh, guys, I think we're going to have a little problem with Maker's if we put this red wax with drippings on the bottle." Actually, that was probably one of those "unvaccinated lawyers" who said that, trying to save his client a lawsuit and money. Go figure. Nah, they didn't listen to the lawyer. Some jackass suit probably said, "F*&$ 'em. What the hell do I care, my bourbon business sucks. Plus, I like to goose them bastards at Maker's every chance I get."

The blame should go on Diageo, if anyone.

[ErichPryde]

Scott, from the standpoint of the courts, it doesn't matter whether or not it's another whiskey bottle or another tequila bottle that mimicked the wax drippings. The point is, someone did, and if someone gets away with a tequila bottle, Somebody else might try to get away with a bottle of bourbon.

Having seen Maker's advertising, I have to say that Maker's has made their signature top synonymous with their product. I'm sure someone here has seen the "favorite redhead" advertisement, which shows essentially only the neck of the bottle? There's also the "ace in their hands" ad. The "always bet your favorite color" ad doesn't even show the bottle at all, simply the wax neck ad drippings, turned sideways and meant to look like a horse.

In fact, almost all of the Maker's mark advertisements display the dripping wax seal prominently. A quick search of e-bay will bring up plenty of ads.

[craigthom]

The other side of the coin is trademarks that were not defended and became generic terms. Examples include laundromat, cellophane and aspirin. Owners of powerful brands like Disney, Kleenex, Levi's, Coke, etc., spend a fortune protecting their intellectual property.

[cowdery]

I cannot imagine any argument that would persuade me that there would have been a single instance of non-sale of a bottle of MM had they left well enough alone. But you're welcome to try.

[dean_martin]

Scott - thanks for your cordial response and apology (which wasn't necessary, but it is appreciated). I apologize for many of the a-holes who give my profession a bad name. You're not the only person who has mentioned that you knew a lawyer who came across as a bad person. Many of us, however, are in search of Atticus Finch and I hope more will follow. Our image is dreadful.

[CorvallisCracker]

I cannot imagine any argument that would persuade me that there would have been a single instance of non-sale of a bottle of MM had they left well enough alone. But you're welcome to try.

False issue. The issue is whether or not a future infringer would point to the Cuervo bottle and say, "if that's acceptable then this (whatever they did) should be acceptable too." That's how precedents are used in Trademark law.

It's not a false issue in the context I made that statement, which is that I would exercise common sense before embarking on a costly and possibly doomed lawsuit (more common sense than MM, anyway). I was talking about my decision, and it is not your place to dictate to me whether or not I can apply that.

And do keep in mind that I've already acknowledged that my appeal to common sense is every bit as futile as a Diogenes' search for an honest man. Just don't expect me to abandon common sense just because no one else values it.

Dontcha think somebody at Diageo mighta said: "Uh, guys, I think we're going to have a little problem with Maker's if we put this red wax with drippings on the bottle." Actually, that was probably one of those "unvaccinated lawyers" who said that, trying to save his client a lawsuit and money. Go figure. Nah, they didn't listen to the lawyer. Some jackass suit probably said, "F*&$ 'em. What the hell do I care, my bourbon business sucks. Plus, I like to goose them bastards at Maker's every chance I get."

Oooo, imaginary boardroom conversations. Let me try that.

MM jackass suit: Our crack team of web crawlers just discovered three brands of Italian balsamic vinegar that are sealed with red wax. With drips! I want you to go after them!

MM unvaccinated attorney: stares incredulously, then replies Are you insane?

MMJS: Why, what's the problem?

MMUA: Don't you know that most Italian vinegars, like most Italian olive oils, are imported by companies tied to the Mafia? They won't bother with the courts. They'll just burn down our warehouses.

MMJS: So what? We're insured.

MMUA: If you look at our policy, you'll see there's a clause that says if we knowingly put our property at risk, the loss isn't covered. Besides, they wouldn't stop at that. I, for one, don't want to be found dead with a bottle of MM lodged in my colon, and I don't think you do either.

MMJS: How would it get....oh... face turns white, then red Okay fine, leave 'em alone. But I don't have to like it!

What a gawd-awful case of thread drift. The magic word that excuses it: BASEMENT!

[cowdery]

I'm afraid your version of "common sense," Scott, also requires a fantasy trademarks regime. As for my "place," I was just explaining how trademarks law works in the real world, for anyone who cares.

And, at the risk for not knowing my "place" again, how can you characterize the MM lawsuit as "costly and possibly doomed," when they were on firm legal ground (again in the real world) and, in fact, won?

[NeoTexan]

I do not mean to hi-jack this thread but.....

Has anyone tried the 46 that was sold last weekend and what do you think?

[Ultra]

And, at the risk for not knowing my "place" again, how can you characterize the MM lawsuit as "costly and possibly doomed," when they were on firm legal ground (again in the real world) and, in fact, won?

I'll take that one.

What did the suit cost them? You are a lawyer. Got an estimate? $50 million? $10 million? What did "winning" really get them to the guy popping thirty bucks for a bottle of booze? What does that investment yield them in real dollars? Does that yield add to the bottom line? How? We just can't know. None of us. Whether they "won" in court or not is immaterial to the bottom line. I believe that the suit was costly and possibly doomed when one considers its yield to the bottom line.

[ErichPryde]

Obviously Maker's Mark A) Thought that they would probably win and Thought that they could afford it. I'm sure they checked all of their sources (monetarily and otherwise) before they started it. In addition, it was publicity. Other than preserving their image, it gave them more of the love them/hate them publicity that people discuss.

[CorvallisCracker]

I'm afraid your version of "common sense," Scott, also requires a fantasy trademarks regime.

Nope. Not buying that.

You don't explain what you mean by "fantasy", but surely you don't expect us to believe that a responsible CEO, when informed of a possible infringement on a company trademark, would lapse into rage, screaming "WE'LL SUE!!!" I'm sure there are ones like that, but I know I wouldn't want to be a stockholder in a company run by someone like that.

I'd want the decision based on a careful consideration of the actual threat, the real loss of value/sales/profits, the potential PR backlash, and as realistic as possible an appraisal of whether the lawsuit is winnable AND whether one could expect to collect damages. This is what I'm talking about when I say "common sense".

For example, failing to factor in PR backlash,

...Disney sues third grade teachers to stop using Mickey Mouse on the bulletin board and why you see other seemingly gratuitously ugly and mean spirited suits.

Doesn't mean we have to like it ----- The one that still sticks in my craw is what Anheuser Busch did to Bush Pilot - sued them out of business - and I didn't see any crossover infringement. We lost a mighty good whiskey in that deal, and it has kept me from buying an Anheuser Busch product ever since.

Not sure if Steve is referring to the day-care (not third grade) case; in 1989, when the company learned that three Hallandale, Florida, day-care centers had Disney cartoon characters painted on their walls, they threatened a lawsuit, and the centers painted over the Disney characters. But they didn't just paint them over with gray paint. Rival Universal Studios got wind of this and told the centers they were welcome to use Hanna-Barbera cartoon characters, so not only did Disney lose PR points, they lost them to a competitor.

I was just explaining how trademarks law works in the real world

Sure, that's what 90% of it was, and if that had been the entirety of it, this discussion would have ended right there. But apparently you felt absolutely compelled to throw in:

If Scott owned something that valuable, he'd do the same thing. I guarantee it.

and I replied that if I did so it would be only if I perceived an actual risk, and felt that I had a realistic expectation of winning the case; that both of these would be subject to common sense. If you still don't understand what that means, it's that the decision is based on a careful consideration of the actual threat, the real loss of value/sales/profits, the potential PR backlash, and as realistic as possible an appraisal of whether the lawsuit is winnable AND whether one could expect to collect damages.

An additional consideration for me is an ethical one. I'm not going to sue a day-care center, or attempt to collect damages from a small company that is in no way in competition with me. I need to be able to look in the mirror and know I'm not looking at a dirtbag. If you can't see the value in that, that doesn't bother me a bit.

Charlie (who appears to undervalue his own advice) writes:

What did the suit cost them? You are a lawyer. Got an estimate? $50 million? $10 million? What did "winning" really get them to the guy popping thirty bucks for a bottle of booze? What does that investment yield them in real dollars? Does that yield add to the bottom line? How? We just can't know. None of us. Whether they "won" in court or not is immaterial to the bottom line. I believe that the suit was costly and possibly doomed when one considers its yield to the bottom line.

Yep, their effort to protect their red wax ultimately got them only a lot of red ink. In a press conference, Bill Samuels can crow all he wants about MM's "victory", but in a stockholder's meeting I'd be demanding to know how all this affects the size of my dividend.

The "value" of their trademark was in no way diminished, and, as I said, not a single lost sale of MM bourbon came of this, which is why Judge Heyburn chose not to award damages.

"Because the proof at trial did not show harm to Maker’s Mark, gain to Cuervo, bad faith on the part of the Defendants or quantifiable consumer confusion, the Court finds that a monetary award, in any form, is not warranted here."

That right there is what's known as "common sense". Now, I'm sure you'll be telling me I'm wrong, but since it's Judge Heyburn's opinion (not mine) that matters, go tell it to him.

Good luck with that.

[nblair]

I know this thread is pretty far off topic, but I want to chime in on this...

I keep hearing people say the "dripping red wax" is a Maker's Mark trademark. I agree with that statement. I question though, if people have seen the Cuervo bottle. Pictures are here. I don't see any dripping wax anywhere.

Not only is there no "dripping" red wax, there is also a stamped seal of some sort in the wax, and some blue ribbon/paper at the bottom of it. I don't see how this is similar enough to Maker's Mark that a judge can tell Diageo they can't use it.

I don't think there is any denying that red wax dripping down a bottle is a Maker's trademark. However, people were using wax to seal bottles way before Maker's Mark did, and I think Diageo did enough to the wax to make it different than Maker's. Let alone it's a Tequilla, and they won't compete with each other like Woodford Reserve and Ridgewood Reserve (which is just blatant and stupid in my opinion).

What I'm gathering from the ruling is that from now, until the end of eternity or Maker's Mark (whichever comes first), no bottle can be sealed in wax that happens to be red whether or not it's dripping down the bottle. I call BS.

Disclaimer: This doesn't affect my views of Maker's Mark, just my $.02.

[CorvallisCracker]

IWhat I'm gathering from the ruling is that from now, until the end of eternity or Maker's Mark (whichever comes first), no bottle can be sealed in wax that happens to be red whether or not it's dripping down the bottle.

Actually, the ruling specifically protects "red dripping wax".

Entire ruling can be found here.

[nblair]

Actually, the ruling specifically protects "red dripping wax".

Entire ruling can be found here.

Thank you for the link.

"Diageo violated federal trademark and common law when they produced and distributed a bottle of tequila capped with a red dripping wax seal similar to the one Maker’s Mark has used for over 50 years."

I guess I need glasses, but I don't see dripping red wax in the photos on Bourbon Blog. Maybe it looks different in person. Oh well...

[TomH]

Thank you for the link.

I guess I need glasses, but I don't see dripping red wax in the photos on Bourbon Blog. Maybe it looks different in person. Oh well...

[TomH]

I do not mean to hi-jack this thread but.....

Has anyone tried the 46 that was sold last weekend and what do you think?

[craigthom]

I figure I should answer this one since Dale was gracious enough to invite me over to taste it.

The staves gave it a nice body without having the wood become too dominant. While I would not rate it near my favorites, it is a very nice easy drinking whiskey. I definitely will buy a bottle if the price is not significantly above the standard MM. However, if they try and market this with a premium price it won't find its way to my bar.

Tom

[ThomasH]

Didn't Makers Mark and BT get into it over ETL having a gold wax seal on the bottles? Even the color of wax on the bottle doesn't offer any protection!

Thomas

[ErichPryde]

I don't often have reason to offer criticism of bourbonblog, but posting a picture of a cuervo bottle that did NOT have the drippings, or not knowing that the issue was a bottle that DID have drippings, is misleading. If it was intentional, it's just as underhanded as suing a tequila company for the publicity.

Also, there's a huge difference between the disney suit and the maker's suit. one was completely incompetent and the other is questionable.

[smokinjoe]

Diageo could have picked 1000 different tops for this bottle. They chose a red wax capsule with drippings. This decision was calculated at every step to get exactly the response that ensued. There are 5,000 people on these boards that would guess that this decision would be controversial, and probably met with a vigorous defense by Maker's. I don't for one minute think that the Giant Diageo did not see this coming. Nor, do I think their choice was benign.

[nblair]

I don't often have reason to offer criticism of bourbonblog, but posting a picture of a cuervo bottle that did NOT have the drippings, or not knowing that the issue was a bottle that DID have drippings, is misleading.

Tell me about it. That's what I get for not looking into it myself to find more photos though....dammit. :banghead: