New CEHT

[FacePlant]

I did look on the TTB thread to see if a label app had been processed and didn't see any mention. Rumored (by the Man himself) that the new LE in the CEHT line will be an 18yr old with all three BT mashbills. Since they've done 4 grain already it will be an interesting comparison. Neat thing is these barrels were resting long before the CEHT was brought to market. FUN.  

[BottledInBond]

I don’t love the name, since FR had previously done that. But, I guess they stopped using theirs so oh well. IP lawyers might still want to fight about it though. This label was already approved

[The Black Tot]

I'm not convinced anyone is fighting for the exclusive rights to marriage.

[BottledInBond]

4 hours ago, The Black Tot said:

I'm not convinced anyone is fighting for the exclusive rights to marriage.

I have no specific knowledge about whether anyone will actually want to fight about that one, but it certainly seems like there have been lawsuits over less in the bourbon world. I mean, Brown Forman sued over the use of Ridgewood Reserve and Ridgemont Reserve related to their Woodford Reserve line. Or how about Sazerac suing the Castle & Key people about any “Taylor” references, when Castle and Key was reopening a historic facility that has the Taylor name carved in stone across the front of the building? And don’t get me started on the Chatham legal shenanigans. Just sayin’ it’s an industry with plenty of litigation, and something like that catches my eye as a potential source of conflict when one distiller uses a term in a brand name that another has previously used. And of course it could be a nothingburger, and for all I know Saz might’ve run it by FR before using it too. Who knows? 

[fishnbowljoe]

Just for minor clarification, the FR's bottlings from 2008 and 2009 were Mariàge. BT's just released bourbon is Marriage. Small differences in spelling and pronunciation could possibly make all the difference.

 

Biba! Joe

[BottledInBond]

8 minutes ago, fishnbowljoe said:

Just for minor clarification, the FR's bottlings from 2008 and 2009 were Mariàge. BT's just released bourbon is Marriage. Small differences in spelling and pronunciation could possibly make all the difference.

 

Biba! Joe

True that there is an ever so slight difference there. But, again Woodford Reserve sued over the use of Ridgewood and Ridgemont Reserve. Both clearly different words from Woodford. 

[Bob_Loblaw]

6 hours ago, fishnbowljoe said:

Just for minor clarification, the FR's bottlings from 2008 and 2009 were Mariàge. BT's just released bourbon is Marriage. Small differences in spelling and pronunciation could possibly make all the difference.

 

Biba! Joe

 

6 hours ago, BottledInBond said:

True that there is an ever so slight difference there. But, again Woodford Reserve sued over the use of Ridgewood and Ridgemont Reserve. Both clearly different words from Woodford. 

 

I believe the issue in trademark infringement suits is whether the offending product creates market confusion between itself and the plaintiff's existing product.  I read an article on Sippin Corn and from that it appears the Woodford case was a lot stronger then just the substitution of the words Ridgewood and Ridgemont.  1792 was held to be to trying to create a "Woodford feel" and that their Reserve product copied Woodford's logo, logo design, and flask shaped bottle.   I thought it was interesting that weight was given to the fact that there was no prior historical significance to the name Ridgewood/mont, it was just made up for the copycat product.  Sazerac sued on the use of Taylor and some existing signs on the Castle & Key property, but lost.

 

On the marriage question, even if spelled identically in the same font, size and label location, my gut says it is still too general of a word and commonly used enough in the industry to be the basis of a successful claim.  If you placed the 4R bottle next to the new EHBottle they are so dissimilar in appearance that I don't think there would be any confusion about whether they were separate products.   That said, I believe any corporation with a valuable trademark will aggressively defend it from copycats and could very well take action on a weaker claim just to let competitors know they are actively on watch and are coming up firing if someone even comes close to their product.  See Sazerac Taylor lawsuit. . . maybe?  

 

Back on point, I enjoy the creativity of the EH releases and am a big fan of the presentation and look in general  The regular Small Batch, Single Barrel, and Barrel Proof are all fantastic to my palate.  On the flip side at 18 year age stated and thus far every article I've seen has made a direct reference that the Wheated Mashbill is the very same as the ambrosial and legendary Pappy Van Winkle.  The hype is going to be off the charts, Ugh.  

[Harry in WashDC]

10 hours ago, fishnbowljoe said:

Just for minor clarification, the FR's bottlings from 2008 and 2009 were Mariàge. BT's just released bourbon is Marriage. Small differences in spelling and pronunciation could possibly make all the difference.

 

Biba! Joe

Mariage, marriage, marraige - let’s call the whole thing off.

 

Haven’t finished reading the thread, but I did patent/trademark law for a judge for a year or so.  Joe’s onto something.  Plus, when there’s money involved, some guys will work for “fee”.  I know a guy who took on defense of a sodomy charge by arguing, “My client was just following too close.”

 

edit — 

Edited May 8, 2020 by Harry in WashDC
OF COURSE!

[FacePlant]

4 minutes ago, Harry in WashDC said:

 I know a guy who took on defense of a sodomy charge by arguing, “My client was just following too close.”

I typed 4 or 5 responses to this Harry. None of them work.  

Let the thread continue to morph and we'll see where it leads. 

[BottledInBond]

3 hours ago, Bob_Loblaw said:

 

 

I believe the issue in trademark infringement suits is whether the offending product creates market confusion between itself and the plaintiff's existing product.  I read an article on Sippin Corn and from that it appears the Woodford case was a lot stronger then just the substitution of the words Ridgewood and Ridgemont.  1792 was held to be to trying to create a "Woodford feel" and that their Reserve product copied Woodford's logo, logo design, and flask shaped bottle.   I thought it was interesting that weight was given to the fact that there was no prior historical significance to the name Ridgewood/mont, it was just made up for the copycat product.  Sazerac sued on the use of Taylor and some existing signs on the Castle & Key property, but lost.

 

On the marriage question, even if spelled identically in the same font, size and label location, my gut says it is still too general of a word and commonly used enough in the industry to be the basis of a successful claim.  If you placed the 4R bottle next to the new EHBottle they are so dissimilar in appearance that I don't think there would be any confusion about whether they were separate products.   That said, I believe any corporation with a valuable trademark will aggressively defend it from copycats and could very well take action on a weaker claim just to let competitors know they are actively on watch and are coming up firing if someone even comes close to their product.  See Sazerac Taylor lawsuit. . . maybe?  

 

Back on point, I enjoy the creativity of the EH releases and am a big fan of the presentation and look in general  The regular Small Batch, Single Barrel, and Barrel Proof are all fantastic to my palate.  On the flip side at 18 year age stated and thus far every article I've seen has made a direct reference that the Wheated Mashbill is the very same as the ambrosial and legendary Pappy Van Winkle.  The hype is going to be off the charts, Ugh.  

The copycat stuff is interesting. I think it’s fairly well known/assumed that Eagle Rare was introduced to try to compete with Wild Turkey. Each a two word name, bird on front, 101 proof. Was there any scuffle back when that happened? And when did Fighting Cock come out? Once again, two words, bird on the front, similar proof. Clearly those aren’t all just coincidences are they? 

[Jazz June]

Putting aside the likelihood of confusion (the test for trademark infringement) between MARRIAGE and MARIAGE and any distinctiveness issues with attempting to protect MARRIAGE/MARIAGE, it is very unlikely that Four Roses currently has any trademark rights in MARIAGE. It is my understanding that they did two MARIAGE releases in 2008 and 2009, with no use of the term since then. If that is the case, then they have almost certainly abandoned any trademark rights they may have previously had in the term. Their registration for THE FOUR ROSES MARIAGE COLLECTION trademark was cancelled in 2015. It initially issued in 2009, so they would have had to file proof of use with the USPTO in 2015 and claim that the mark remained in use to keep the registration alive. They did not do so (presumably because the mark was not in use) and the registration was subsequently cancelled.

 

Trademark rights in the U.S. are dependent on use of the mark. A continuous three year period of non-use creates a presumption that the trademark has been abandoned. If you abandoned the mark, you are unlikely to be able to protect it any longer and it should be free for others to use.

 

There is a concept called residual goodwill, that could at least theoretically apply. This comes up for retired brands because there are entities that come along and try to register and begin using these old brands that still retain significant public recognition. For example, think of an old car brand like PONTIAC. While GM doesn't make PONTIAC anymore, many of us still remember the brand and some might be confused if someone else came along and was selling PONTIAC cars. That residual goodwill and potential confusion give the old brand owner an argument, but it would still be an uphill battle because this theory is contrary to more well established principles of trademark law. And this concept would generally only apply to a brand that had significant recognition from consumers, not a two year, small release from more than a decade ago that very few current prospective customers would be aware of (the knowledge levels of the members of this board are not representative of the general consuming public and if you know that much, the chances of confusion approach zero anyway). Large brand owners will now continue using retired brands for something small and/or ancillary like clothing, models, etc. just to maintain some traditional trademark rights and give themselves a much better case to protect the mark from use by someone else down the line.

 

I also note that MARRIAGE is a registered trademark for wine (although it looks like that registration may lapse later this year), owned by Terra Springs LLC d/b/a Terra Valentine Vines. It is reasonably likely that if Sazerac applied to register 18 YEAR MARRIAGE for distilled spirits/whiskey that, assuming it is kept active, this registration would block their mark from registration. In fact, this MARRIAGE registration was cited by the USPTO to bar registration of MARIAGE for wine by another company. Sazerac owns a registration for AMARANTH GRAIN OF THE GODS, but does not appear to have filed trademark applications for other special EH Taylor releases.

 

And thus ends "way more than you wanted to know about trademarks." As to the whiskey itself, I sure hope I get to try some!

 

 

 

Edited May 8, 2020 by Jazz June
fixed spelling error

[chrisbar1104]

20 hours ago, Bob_Loblaw said:

On the marriage question, even if spelled identically in the same font, size and label location, my gut says it is still too general of a word and commonly used enough in the industry to be the basis of a successful claim.

I feel like there is so much "hazy," unclear area about what is and isn't a commonly used word.  A craft-distillery near me, formerly Gray Skies Distillery, was being sued by Campari because it was "likely to cause confusion" with Skyy Vodka.  It's not even their first time being sued (previously over the use of the word "breakfast").  I'm not a law expert, just seems confusing to me about where to draw the line.

[flahute]

14 hours ago, Jazz June said:

Putting aside the likelihood of confusion (the test for trademark infringement) between MARRIAGE and MARIAGE and any distinctiveness issues with attempting to protect MARRIAGE/MARIAGE, it is very unlikely that Four Roses currently has any trademark rights in MARIAGE. It is my understanding that they did two MARIAGE releases in 2008 and 2009, with no use of the term since then. If that is the case, then they have almost certainly abandoned any trademark rights they may have previously had in the term. Their registration for THE FOUR ROSES MARIAGE COLLECTION trademark was cancelled in 2015. It initially issued in 2009, so they would have had to file proof of use with the USPTO in 2015 and claim that the mark remained in use to keep the registration alive. They did not do so (presumably because the mark was not in use) and the registration was subsequently cancelled.

 

Trademark rights in the U.S. are dependent on use of the mark. A continuous three year period of non-use creates a presumption that the trademark has been abandoned. If you abandoned the mark, you are unlikely to be able to protect it any longer and it should be free for others to use.

 

There is a concept called residual goodwill, that could at least theoretically apply. This comes up for retired brands because there are entities that come along and try to register and begin using these old brands that still retain significant public recognition. For example, think of an old car brand like PONTIAC. While GM doesn't make PONTIAC anymore, many of us still remember the brand and some might be confused if someone else came along and was selling PONTIAC cars. That residual goodwill and potential confusion give the old brand owner an argument, but it would still be an uphill battle because this theory is contrary to more well established principles of trademark law. And this concept would generally only apply to a brand that had significant recognition from consumers, not a two year, small release from more than a decade ago that very few current prospective customers would be aware of (the knowledge levels of the members of this board are not representative of the general consuming public and if you know that much, the chances of confusion approach zero anyway). Large brand owners will now continue using retired brands for something small and/or ancillary like clothing, models, etc. just to maintain some traditional trademark rights and give themselves a much better case to protect the mark from use by someone else down the line.

 

I also note that MARRIAGE is a registered trademark for wine (although it looks like that registration may lapse later this year), owned by Terra Springs LLC d/b/a Terra Valentine Vines. It is reasonably likely that if Sazerac applied to register 18 YEAR MARRIAGE for distilled spirits/whiskey that, assuming it is kept active, this registration would block their mark from registration. In fact, this MARRIAGE registration was cited by the USPTO to bar registration of MARIAGE for wine by another company. Sazerac owns a registration for AMARANTH GRAIN OF THE GODS, but does not appear to have filed trademark applications for other special EH Taylor releases.

 

And thus ends "way more than you wanted to know about trademarks." As to the whiskey itself, I sure hope I get to try some!

 

 

 

Fascinating! Thanks for this post.

[Kepler]

Also, isn't the word "marry" and therefore "marriage" sometimes used to describe the blending process?  Perhaps it would be difficult to lay claim to a step in the whiskey producing process as exclusive ( ? )

[smokinjoe]

The only thing that Four Roses is probably taking issue with now, is that it is reminding people that they picked such a stupid name like Mariage 12 years ago....

[Clueby]

[Richnimrod]

2 hours ago, Clueby said:

HA!!!!  Priceless comment, my friend!!!   

It took me minute or two to post this as I had to pick myself up off the floor, then wipe the Pepsi-spray off my computer screen.   THANX for the best laugh I've had in quite a while, Clueby!

[Harry in WashDC]

On 5/8/2020 at 3:43 PM, chrisbar1104 said:

I feel like there is so much "hazy," unclear area about what is and isn't a commonly used word.  A craft-distillery near me, formerly Gray Skies Distillery, was being sued by Campari because it was "likely to cause confusion" with Skyy Vodka.  It's not even their first time being sued (previously over the use of the word "breakfast").  I'm not a law expert, just seems confusing to me about where to draw the line.

I sat in, as an observer, to some of the testimony in US District Court for the District of Columbia, when Schlitz v. Miller was at trial.  Schlitz Light and Miller Lite were fighting over whether there was a confusing trademark issue re: Lite and Light.  I don't remember who was suing whom for infringement, but I do remember the trial judge asking the brewmaster for Miller, "Just what IS the difference between a regular beer and a light beer?"  Brewmaster:  "In a 12 ounce pour?  About one ice cube, melted."  General guffawing in the gallery ensued.

Edited May 9, 2020 by Harry in WashDC

[fishnbowljoe]

5 minutes ago, Harry in WashDC said:

I sat in, as an observer, to some of the testimony in US District Court for the District of Columbia, when Schlitz v. Miller was at trial.  Schlitz Light and Miller Lite were fighting over whether there was a confusing trademark issue re: Lite and Light.  I don't remember who was suing whom for infringement, but I do remember the trial judge asking the brewmaster for Miller, "Just what IS the difference between a regular beer and a light beer?"  Brewmaster:  "In a 12 ounce pour?  About one ice cube, melted."  General guffawing in the gallery ensued.

So, tastes great, or less filling?  

 

Biba! Joe

[Richnimrod]

33 minutes ago, fishnbowljoe said:

So, tastes great, or less filling?  

 

Biba! Joe

In my experience (granted from many a year past) I'd have to say; NEITHER!

[Swamp55]

20 hours ago, Harry in WashDC said:

... General guffawing in the gallery ensued.

My favorite sentence of the day! 

[Harry in WashDC]

3 hours ago, Swamp55 said:

My favorite sentence of the day! 

THX!  I try to please., especially since the bulk of my time on thishere planet has been as a jerk, curmudgeon, or scold.  I am making amends as best I can.

 

 

[Richnimrod]

8 minutes ago, Harry in WashDC said:

THX!  I try to please., especially since the bulk of my time on thishere planet has been as a jerk, curmudgeon, or scold.  I am making amends as best I can.

 

Harry!!!!   Say it ain't so!!! 

From the posts of yours I've read on thishere site, I had formed an image of a kinduhvuh big Teddy Bear of a fellow.        Tell me I'm not wrong about that... Please?  

[Harry in WashDC]

54 minutes ago, Richnimrod said:

Harry!!!!   Say it ain't so!!! 

From the posts of yours I've read on thishere site, I had formed an image of a kinduhvuh big Teddy Bear of a fellow.        Tell me I'm not wrong about that... Please?  

I'm about the size and certainly the shape of a teddy bear.   Ergo, your image is well-formed.

 

ON THREAD - have not seen one of these, yet.  I have browsed local websites since I stumbled on this thread and have come up empty.  I am assembling a "delivery" order and fear that this one will NOT be in the wish list.

[mbroo5880i]

I may be mistaken but I thought I read the MSRP is $70.  Is this correct?  It probably doesn't matter since I doubt I will ever see it.