Brown-Forman vs. Barton

[doubleblank]

When Val and I got off the plane in Louisville while traveling to the Sampler, our first stop was at the Fern Valley Liquor Barn. This was about 3 pm Friday. I perused the bourbon aisle looking for things we can't get in Texas. The Ridgewood Reserve was one and the OFBB was another. I picked up two of each....the shelf was full of the Ridgewood Reserve at that time. One of the Ridgewood's was marked for "wadewood" up in Seattle as he can't get any there, and I wanted one of his 2002 GTS's. Little did I know I was making a good purchase by accident...I hadn't heard about the decision. Collectible or not, I'm going to open mine because I want to know what it tastes like.

Randy B.

[TNbourbon]

I like it pretty well. So, I'm glad I've managed to lay in a decent supply, so I won't feel bad if I want to open one despite its irreplacability. Fortunately, the bottle I have open still is about 3/4-full.

[brendaj]

Tim,

Interesting to see if they will keep the bottle.

I bet they do. It's one of the best looking bottles on the shelf, and...

it will irritate BF

[jeff]

and...

it will irritate BF

I was thinking the same thing: Leave the bottle as is, drop the "Ridgewood Reserve" leaving only the 1782, and change the placement of the label. Most of the "stupid consumers" that BF worries about won't know the difference and BF will be out a lot of money in legal bills for a change that doesn't amoun't to squat

[boone]

I drive by Barton's on my way to work. Their big sign in front of the warehouses with 1792 bottle, is gone.

I do the embroidery for Barton's also. They have ordered shirts. They have instructed me to change the word "Ridgewood" to "Ridgemont" in their emboridered wearables.

Bettye Jo

[Peter_Pogue]

Hey, c'mon, I'm all for the little guy but have you read the decision? The judge said the names "Ridgewood Reserve" and "Woodford Reserve" were confusing to consumers. I don't think most consumers were confused. However, if you look at the text of the decision you will see the judge based her decision on the fact that a Barton (which produces Ridge(mont)wood) executive kept referring to his own product throughout the deposition as "Woodford Reserve". Now, if the company executive is confused with his own product how can the consumer not be? Barton will recover from this temporary setback. The Barton executive, and the lawyer and lawfirm who represented him at the deposition, I am afraid, will not.

[bobbyc]

I found this whole thing to be unfortunate. I had hoped that Barton would prevail, the addition of the Ridgewood Reserve Small Batch Bourbon was a welcomed one. However, if one goes to www.Bartoninc.com and click on "Let me see what the Lawyers have to say", this is the legal page of their website, Please tell me how much sympathy you have left in your heart for Barton after reading that.

I wonder if Brown-Forman took a cue from Barton there.

.

[Speedy_John]

I read Barton's legal page, as you suggested, and, to be honest, I found nothing wrong with it. In fact, I found it amusing in parts. A bit smarmy at times, but also amusing. Such pages--full of legal disclaimers and rules of use--are a part of nearly every website I have ever visited, and usually they are written in "legalese" and as interesting to read as the phone book. At least Barton's website people found a way to include the necessary legal stuff while putting it in a bit plainer English.

SpeedyJohn

[jeff]

That was quite an entertaining read Bobby, Thanks

It amounts to about what every legal disclaimer I have read amounts to, just sounds harsh in plain english. Maybe that's why they use "legal ease", to not offend anyone with the cold hard truth

I do think if I was Barton I would have softened that up a bit, or replaced it with the standard, hidden legal statement. Kinda justifies BF's actions on Barton's own site

[OneCubeOnly]

Is that harsh legal language new to their site? (ie. was it there prior to the lawsuit nonsense?) The natural response to all that is "gosh...they're sure bitter about legal issues!", but truth be told, it is all pretty standard stuff. I just haven't seen it without the normal 'sugar coating'.

[boone]

Please tell me how much sympathy you have left in your heart for Barton after reading that.

Hmmmmmmm... Now that's shootin' it straight...All of 'em should have pages like that (or simular) It does not change my attitude toward Barton's

With my little company I know enough about copywriting stuff to keep me outta court. There is a fine line with everything. It's comical to see that somebody took the time to state the facts (right between the eyes)

Bettye Jo

[Gillman]

Yes, but I see Bobby's point too. He's saying if these guys care so much about legal stuff - protecting themselves 6 ways to Sunday in this instance and spelling it out in a manner which (indeed) can be viewed as somewhat smarmy, we shouldn't feel too badly when another company uses the law in their own interest too. And I say that as someone who, so far anyway, doesn't see the reason or logic of the decision that went against Barton's, but the law cuts both ways, is what Bobby is saying. And Barton's knows they could have appealed the decision, it seems they have chosen not to, so probably they are not too upset with the result. They will repackage and rebrand the product. It got a lot of publicity and they know buyers will be out looking for the replacement package, so everything has kind of evened out, I think..

Gary

[TNbourbon]

Yeah, I'm kinda in the I-see-both-sides-of-it camp, too. Barton's legal disclaimers are appropriate and accurate -- and an admission that they knew better than to toy with anything close to the Woodford Reserve marketing.

I like Ridgewood Reserve, and I hope/trust it will stay on the market in some form. If not, then I feel sorry for us. If so, then I don't feel sorry for anybody. Barton should have played by its own stated rules.

(And, before anyone points it out, I admit that's a turnaround from my previous sentiment, which was to color B-F petty. But, they proved their case, it seems.)

[cowdery]

Do you have a link to the decision or a copy you can share? If so, please do.

I notice you are new to StraightBourbon. Are you an interested party in this particular dispute?

[dhooch]

You have a real good point!

[Peter_Pogue]

No, sir, I am not an interested party in the dispute. Are you? I do, however, subscribe to the Bourbon Country Reader, have a law degree, spend most of my time in litigation (including trademark infringement), know that I was hoping Barton would prevail due to the fact Brown Foreman is setting a dangerous trend, which by the way, may have a chilling effect on any new bourbons that want to enter the market (which is exactly what BF wants), but can't feel too bad if Barton's executive can't get his own product's name straight, and can't help but feel part of this is all a publicity stunt. If you read the article the statistics indicate Barton's sales skyrocketed after the litigation ensued. By the way, I've never seen debated on this website the following question: how can it be called a "small batch" bourbon if it is made in mass quantities by major conglomerates? I ordered a copy of the text of the opinion from Judge Coffman's office.

[TNbourbon]

Here's a link to the U.S. District Court, Western Kentucky (Coffman was the presiding judge):

U.S. District Court, Western Kentucky

but no opinion is yet posted.

[cowdery]

I'm an interested party in the sense that we all are but not in the legal sense. When you said you had read the opinion I perked up because I have been checking and didn't believe it had been issued yet. You were, apparently, referring to the account of the explanation given from the bench reported in the CJ.

On this board and others in which I have participated, people from the PR firms and ad agencies hired by the liquor companies attempt guerilla marketing from time to time. Invariably they are making only their first post when they innocently try to start a threat favorable to the product they are promoting. I noticed that you were posting for the first time and asked the question. No offense was meant and I hope none was taken. I hope you will continue to participate. It's a great group of people and a lot of fun.

As for being a lawyer, this board is like the rest of the world. Half of us (myself included) are lawyers, the rest hate lawyers, and no doubt some are self-loathing lawyers.

I have no statistics but there is a lot of anecdotal evidence that the lawsuit has been great for sales of Ridgewood Reserve. As for the chilling effect of this case, I'm not so sure. I think, as I have said before, that the bridge too far was Barton's use of the word "wood." If they hadn't used that word, there wouldn't have been a case.

As for small batch, I have challenged that term since Jim Beam coined it. It is only legitimate insofar as selecting barrels for bottling is a key part of "making" bourbon and that is, in fact, done in small batches in the cases of the products that use that term.

[Peter_Pogue]

Chuck,excellent points (as everyone has come to expect from you). Believe me, no offense taken. My only disagreement is with your statement about lawyers. I would assert that even the half that are lawyers also hate lawyers! I do wish that the PR and marketing people would stay off these sites. Aren't they the ones that got the mess between BF and Barton started to begin with? I agree with your assessment regarding the use of "wood". I am concerned, however, with what appears to be the judge's anecdotal statement about the use of "Distiller's Select" as being inappropriate. These names "Distiller's Reserve" "Special Select", etc. have, in my mind, been in the public domain and not trademarked so their use by anyone was fair game, just like the use of "small batch". I think this may lead to more litigation between companies over the use of these marketing phrases. But, this is very interesting to me, and as I said initially, I am very impressed with the breadth and depth of the knowledge of those engaging in the discourse on this site.

[Gillman]

I am one of us with a legal background and since you have read the case and practise law, can you explain a bit further what exactly the decision was?

Was it based on infringement of statutory trade mark rights? Was it based on common law passing off? (In either case, and speaking broadly, this means causing confusion in the mind of customers by using a product name or design similar to one used earlier by a competitor so that the consumer is led to buy product B when they mean to buy Product A). If this is the basis I can't see it because the packages were quite different in appearance and where the elements were similar, as you say, the words seem descriptive and in the public domain for many years.

The reason I ask is, I remember in law school many years ago reading of a court decision from Australia which involved an advertising campaign (I can no longer recall the product, might have been an orange or other soda) which involved a man coursing down a river in a canoe. There was an outdoor theme generally to the promotion. A competitor used a very similar ad campaign to promote its product. The court held this was a wrongful action (tort) which gave the first party to use the promotion the right to sue the second for damages. As I recall, there was no violation proved of copyright or trade mark rights.

I was wondering if Judge Coffman may have applied this type of legal reasoning for the decision. In other words, that BF had the right to the idea of presenting a product as made by a small company which sells only select, reserve products, and the association with a small rural operation (suggested perhaps by the use "wood", also its use in aging whiskey).

Did in a word Barton (in the judge's view) borrow the whole design/promotional concept of Woodford Reserve and did that form the basis for the decision, or was it based simply on old-fashioned trade mark infringement? If the latter what marks or designs specifically were felt to be misused in this way?

By the way, I don't hate lawyers, I do think we are a largely misunderstood crew (partly this is our own fault, though). Lawyers have done enormous good by and large to the societies in which they have had most influence. The results are not always seen on the surface of daily life, but a quick read of the world press shows us that many parts of the world would benefit from more common law and statute law enacted by truly democratic legislatures (traditionally dominated by lawyers), not less.

Gary

[doubleblank]

The wine industry also uses many terms to imply something special or remarkable about their product.....but without any verifiable standard to be measured against. "Reserve", "winemaker's reserve", etc imply that these wines are held back from their regular blend because they are special and bottled separately when in many, many cases the winery in question bottles 100,000 cases of its reserve. The terms you referred to also have an implication of something special or premium about the product, but no real standard to be measured against. What is the definition of "distiller's select" anyway? How would the judge know that my bourbon isn't a "distiller's select" by definition?

Randy B.

[gr8erdane]

I don't know about all the legal mumbo jumbo but I can at least understand this much. As my enthusiasm for bourbon has increased, I have been a busy evangelist preaching the word to people and I have had many ask for my opinion on what they should try. If I were to tell them Ridgewood Reserve and send them scurrying to the store, and if they had not written it down they might easily have purchased Woodford Reserve instead. Personally, I think they would have come home with the lesser value. But that is my own personal opinion.

[cowdery]

Supposedly a written decision is forthcoming. All we have now is the order, which says: "the court rules in favor of the Plaintiff on the trademark infringement claim as to word mark, and in favor of the Defendants on the registered label design." This is why I say it all boiled down to the word "wood," which I see as sufficiently distinctive to merit trademark protection. All of the other evidence merely supported the contention that Barton's use of the word "wood" was a deliberate infringing act and not inadvertant.

As for prohibiting the use of "distiller's select," I think it has to be viewed in context of the prohibition on use of the words "ford," "Labrot" and "Graham," none of which were used by Barton originally. I would certainly argue that the prohibition is prophylactic and case-specific, but I could imagine some future BF attorney arguing that it gives BF exclusive use of the phrase "distiller's select."

[Marvin]

Gary,

I agree with you 100%. This is a win win situation for both parties. That might not seem right to some people but if you stop and think about it, VOB is going to sell a lot more because of this and Brown and Forman(and I think this may be the case) are going to sell a lot more Woodford Reserve, but of course, I am prejudice, so I will just have to stand on that rock-pile with Boone and defend VOB.

Cheers,

Marvin

[Gillman]

Thanks, Chuck. If the judge held that "Ridgewood Reserve" is confusingly similar to "Woodford Reserve", I, again, respectfully disagree with the decision. "Reserve" is clearly a descriptive term. "Ridge" and "ford" are different terms, evidently. I don't see that the single unifying element, "wood", can cause confusion when it is one-third of each of the marks, and taking into account also that Defendant won on the design mark issue.

Barton would have won on appeal, in my view.

Gary