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(Above the Law)   This Sixth Circuit judge knows his bourbon   (abovethelaw.com) divider line 101
    More: Cool, Sixth Circuit, justices, Jose Cuervo, mash ingredients, Ian Fleming, Maker, interpersonal relationship  
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13736 clicks; posted to Main » on 20 May 2012 at 5:01 PM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-05-20 03:43:52 PM
In the Kentucky justice system,the judges fall into two distinct categories: Those who know their bourbon history and those who don't. This is a story of the former.


*DUN DUN*
 
2012-05-20 03:59:17 PM
"Comments are hidden for your protection. Click here to show them."

What?
Why?
 
2012-05-20 04:56:02 PM
I haven't finished reading the ruling, but I'm thinking that I would enjoy a drink with this judge.
 
2012-05-20 05:06:24 PM
As much as I'm happy this judge understands the history of alcohol, I am hard pressed to believe that Maker's Mark has the sole right to use dipped wax on their bottles.

Yes, I understand that the ruling says exactly that, and that makes it the law of the land, but on a moral level, this ruling is absurd and Maker's Mark should be ashamed for bringing the case, and this judge should be tarred and feathered for such an outlandish ruling.
 
2012-05-20 05:11:05 PM
Substantively, Judge Boyce F. Martin Jr.'s ruling in Maker's Mark Distillery v. Diageo North America upholds a lower court decision that the makers of Jose Cuervo cannot use dripping red wax on their tequila bottles, because it violates the classic trademark "dress element" on Maker's Mark bottles.

Interesting ruling. I could see owning the patent to the particular red color, I can see holding the patent to the bottle, I can see holding the patent to the wax formula. But the patent to the process of dipping a bottle in wax?
 
2012-05-20 05:11:12 PM
...the creator of James Bond (it turns out Fleming preferred bourbon, unlike his famously suave protagonist).

It's because Fleming actually had to drink the booze, whereas his characters did not. A martini without gin is not a martini... and as such is pretty much undrinkable.

/ so there.
// mmmmm, bourbon
 
2012-05-20 05:12:59 PM

AverageAmericanGuy: As much as I'm happy this judge understands the history of alcohol, I am hard pressed to believe that Maker's Mark has the sole right to use dipped wax on their bottles.

Yes, I understand that the ruling says exactly that, and that makes it the law of the land, but on a moral level, this ruling is absurd and Maker's Mark should be ashamed for bringing the case, and this judge should be tarred and feathered for such an outlandish ruling.


So you would be okay with a pizza chain using golden arches? Seems like a good analogy to me based on what I've read on this case.
 
2012-05-20 05:13:42 PM

AverageAmericanGuy: As much as I'm happy this judge understands the history of alcohol, I am hard pressed to believe that Maker's Mark has the sole right to use dipped wax on their bottles.

Yes, I understand that the ruling says exactly that, and that makes it the law of the land, but on a moral level, this ruling is absurd and Maker's Mark should be ashamed for bringing the case, and this judge should be tarred and feathered for such an outlandish ruling.


Not to mention the wax drips down the bottle in a seemingly random and unique fashion. If I were Cuervo, I would make a bottle cap with a candle in the center that could be lit so that the wax drips down forming the seal.
 
2012-05-20 05:14:35 PM

Guidette Frankentits: Substantively, Judge Boyce F. Martin Jr.'s ruling in Maker's Mark Distillery v. Diageo North America upholds a lower court decision that the makers of Jose Cuervo cannot use dripping red wax on their tequila bottles, because it violates the classic trademark "dress element" on Maker's Mark bottles.

Interesting ruling. I could see owning the patent to the particular red color, I can see holding the patent to the bottle, I can see holding the patent to the wax formula. But the patent to the process of dipping a bottle in wax?


That particular bottle in that particular color of that particular formula of wax? With that bourbon inside?

Why does Cuervo even want to do that?
 
2012-05-20 05:14:50 PM

12349876: So you would be okay with a pizza chain using golden arches? Seems like a good analogy to me based on what I've read on this case.


Golden arches are a logo, not a process.
 
2012-05-20 05:16:06 PM

Nick Nostril: A martini without gin is not a martini... and as such is pretty much undrinkable.


A martini needs to taste like a Christmas tree. None of this appletini, chocotini bullshiat. The most I will accept is a hint of lemon.

/Mmm...martini
//Mmm...bourbon
 
2012-05-20 05:16:28 PM

12349876: AverageAmericanGuy: As much as I'm happy this judge understands the history of alcohol, I am hard pressed to believe that Maker's Mark has the sole right to use dipped wax on their bottles.

Yes, I understand that the ruling says exactly that, and that makes it the law of the land, but on a moral level, this ruling is absurd and Maker's Mark should be ashamed for bringing the case, and this judge should be tarred and feathered for such an outlandish ruling.

So you would be okay with a pizza chain using golden arches? Seems like a good analogy to me based on what I've read on this case.


No, but I'd be okay with a pizza chain using red, yellow, and white-striped straws for their fountain drinks or blue paper underneath their fish pizzas.
 
2012-05-20 05:16:37 PM

Gyrfalcon: That particular bottle in that particular color of that particular formula of wax? With that bourbon inside?

Why does Cuervo even want to do that?


What? No! Makers mark and the judge said they own the process of dipping a bottle in wax.
 
2012-05-20 05:17:15 PM

Guidette Frankentits: 12349876: So you would be okay with a pizza chain using golden arches? Seems like a good analogy to me based on what I've read on this case.

Golden arches are a logo, not a process.


And so is the red wax, if you trust this paragraph from WSJ.

The judge denied Maker's Mark's claim for damages but awarded some of the company's legal costs. The Sixth Circuit adopted the lower court's finding that the bourbon-maker's trademark was "extremely strong."


http://blogs.wsj.com/law/2012/05/09/sixth-circuit-wax-seal-on-makers- m ark-bourbon-is-protected/
 
2012-05-20 05:19:09 PM
Can anyone recommend a good, decently priced bourbon to try?

My current potable of choice is Buffalo Trace. Usually go for Knob Creek in bars.
 
2012-05-20 05:19:59 PM

turbidum: Can anyone recommend a good, decently priced bourbon to try?

My current potable of choice is Buffalo Trace. Usually go for Knob Creek in bars.


Define decently priced.
 
2012-05-20 05:21:25 PM
scotchnoob.com

that is all.
 
2012-05-20 05:24:41 PM

12349876: And so is the red wax, if you trust this paragraph from WSJ.


No, it's not the wax, it's the drippings.

FTA:

Maker's Mark sued in 2003, and sometime thereafter Cuervo reverted back to the straight-edged wax seal. A federal district judge ruled that Cuervo's dripping wax seal infringed Maker's Mark's trademark and forbade Cuervo from using it.

The drippings themselves are what is trademarked, not the process. Hrm, this is even more interesting and an even more stupid ruling. The drippings are random. That's like me copywriting the way leaves fall from a tree and then suing Home Depot's garden center because their tree leaves falling off infringes on my copy write.
 
2012-05-20 05:26:45 PM

Guidette Frankentits: 12349876: And so is the red wax, if you trust this paragraph from WSJ.

No, it's not the wax, it's the drippings.

FTA:

Maker's Mark sued in 2003, and sometime thereafter Cuervo reverted back to the straight-edged wax seal. A federal district judge ruled that Cuervo's dripping wax seal infringed Maker's Mark's trademark and forbade Cuervo from using it.

The drippings themselves are what is trademarked, not the process. Hrm, this is even more interesting and an even more stupid ruling. The drippings are random. That's like me copywriting the way leaves fall from a tree and then suing Home Depot's garden center because their tree leaves falling off infringes on my copy write.


After the first ruling, Cuervo went back to a straight-edged wax seal. Maker's Mark pressed for damages and they just got them.
 
2012-05-20 05:27:52 PM
Two weeks ago, I unsuccessfully trolled the queue with:

Worse bourbon around, Maker's Mark, seeks and gets government protection for its so called trade dress, a crappy dripping of red plastic reminiscent of the sloppy seconds of an aids filled crack whore

/I'm a bad person
 
2012-05-20 05:30:43 PM

Guidette Frankentits: Substantively, Judge Boyce F. Martin Jr.'s ruling in Maker's Mark Distillery v. Diageo North America upholds a lower court decision that the makers of Jose Cuervo cannot use dripping red wax on their tequila bottles, because it violates the classic trademark "dress element" on Maker's Mark bottles.

Interesting ruling. I could see owning the patent to the particular red color, I can see holding the patent to the bottle, I can see holding the patent to the wax formula. But the patent to the process of dipping a bottle in wax?


Patent =/= trademark or trade dress
 
2012-05-20 05:30:45 PM
upload.wikimedia.org

That's wax? Always seemed like plastic.
 
2012-05-20 05:30:50 PM

RoyBatty: Two weeks ago, I unsuccessfully trolled the queue with:

Worse bourbon around, Maker's Mark, seeks and gets government protection for its so called trade dress, a crappy dripping of red plastic reminiscent of the sloppy seconds of an aids filled crack whore

/I'm a bad person


You weren't completely wrong. Maker's is only suitable for mixing and pointing out people who don't know their bourbon
 
2012-05-20 05:31:54 PM

turbidum: Can anyone recommend a good, decently priced bourbon to try?

My current potable of choice is Buffalo Trace. Usually go for Knob Creek in bars.


I enjoy Woodford Reserve, I usually see it at about the same price point as Knob Creek.

You might also want to check out the Whisky Advocate reviews page for ideas. They've got a pretty extensive list and give you a score out of 100 as well as a brief written review.
 
2012-05-20 05:33:50 PM
If you don't defend your IP, it becomes null.
 
2012-05-20 05:35:30 PM
Approves
i2.listal.com
 
2012-05-20 05:37:38 PM
Trademarks, patents and copyrights are all different. This case is about the trademarked "trade dress" that is the red wax on the bottle. Since the red wax is something that most people would associate with Maker's Mark, I understand the judge's ruling. It has developed a secondary meaning in the world of alcohol, and therefore is protected. As the judge said, it's a strong trademark.

/never thought Trademarks class would be this helpful on Fark
 
2012-05-20 05:40:40 PM

Guidette Frankentits: Interesting ruling. I could see owning the patent to the particular red color, I can see holding the patent to the bottle, I can see holding the patent to the wax formula. But the patent to the process of dipping a bottle in wax?


Patent != trademark.

Basically, Maker's mark trademarked the drippy red wax seal; it's the mark of Maker's Mark. To imitate that is to diminish Maker's brand image, thus not allowed. Not because any part of the process is patented. We're talking about imitating eons-old tech here.

The idea is that if I'm a drunk who like maker's mark, I just look for the dribbly red seal and grab that. They don't want me grabbing a Cuervo bottle instead.

Guidette Frankentits: The drippings themselves are what is trademarked, not the process. Hrm, this is even more interesting and an even more stupid ruling. The drippings are random. That's like me copywriting the way leaves fall from a tree and then suing Home Depot's garden center because their tree leaves falling off infringes on my copy write.


From the time I was looking at it in the store, it's random, or even wax - it's plastic and every drip is indeed identical. However, you run into that capping your alcohol with anything that runs along the line of 'dribbly bright red wax' is close enough to violate the trademark. You might get away with a dribbly seal of dark red actual wax on your 'ancient' product though.
 
2012-05-20 05:41:48 PM

thedistractor: Trademarks, patents and copyrights are all different. This case is about the trademarked "trade dress" that is the red wax on the bottle. Since the red wax is something that most people would associate with Maker's Mark, I understand the judge's ruling. It has developed a secondary meaning in the world of alcohol, and therefore is protected. As the judge said, it's a strong trademark.

/never thought Trademarks class would be this helpful on Fark


Same here, that's why I took Copyright in law school. Took Admiralty Law just for kicks, and because I like boats.
 
2012-05-20 05:46:13 PM
Honestly one of my favorite cheaper bourbons is Evan Williams Single barrel. I've never had a bad bottle and it sells for under $30
 
2012-05-20 05:46:43 PM

thedistractor: Trademarks, patents and copyrights are all different. This case is about the trademarked "trade dress" that is the red wax on the bottle. Since the red wax is something that most people would associate with Maker's Mark, I understand the judge's ruling. It has developed a secondary meaning in the world of alcohol, and therefore is protected. As the judge said, it's a strong trademark.

/never thought Trademarks class would be this helpful on Fark


Yup. This applies just to dripping red wax. Dripping green wax, like a local NC Apple Brandy I have uses, or straight edged red wax are just fine.

It's not that outlandish a ruling. Perhaps if wax seals on bottles were much more common they are there might be a case here. As it is, Maker's Mark is an okay bourbon with great, and protected, branding.

\Poured myself a glass of Evan Williams 1783 in the middle of reading the ruling.
\\For some reason, I was thirsty.
 
2012-05-20 05:47:19 PM

Polish Hussar: thedistractor: Trademarks, patents and copyrights are all different. This case is about the trademarked "trade dress" that is the red wax on the bottle. Since the red wax is something that most people would associate with Maker's Mark, I understand the judge's ruling. It has developed a secondary meaning in the world of alcohol, and therefore is protected. As the judge said, it's a strong trademark.

/never thought Trademarks class would be this helpful on Fark

Same here, that's why I took Copyright in law school. Took Admiralty Law just for kicks, and because I like boats.


I thought about taking Admiralty law, 'cause, you know, pirates. Had a scheduling conflict, so I didn't, but a friend of mine did. Who later told me that the course was basically 20% salvage rights and 80% waterborne workman's comp. So I think I dodged a bullet there.
 
2012-05-20 05:58:12 PM

Tellingthem: Honestly one of my favorite cheaper bourbons is Evan Williams Single barrel. I've never had a bad bottle and it sells for under $30


Evan Williams makes good bourbons and prices them quite affordably. Also try the 1783, it's their standard 10 year expression. I've seen it priced exactly the same as the Black, which is a 6ish year one, and also miles ahead of any similarly priced bourbon.
 
2012-05-20 05:58:29 PM
images.thecarconnection.com
 
2012-05-20 06:00:21 PM

Robo Beat: I thought about taking Admiralty law, 'cause, you know, pirates. Had a scheduling conflict, so I didn't, but a friend of mine did. Who later told me that the course was basically 20% salvage rights and 80% waterborne workman's comp. So I think I dodged a bullet there.


When I took Admiralty in 2011 waterborne workman's comp was no more than 20% of the course. Most of the course dealt with things related to accidents and saving a ship (salvage, towing, general average, limitation of liability, Jason clauses, marine insurance). There was also a fair amount of jurisdiction (limits of admiralty jurisdiction, the saving to suitors clause of the Constitution). It was actually a very interesting course.
 
2012-05-20 06:00:30 PM

Robo Beat: Polish Hussar: thedistractor: Trademarks, patents and copyrights are all different. This case is about the trademarked "trade dress" that is the red wax on the bottle. Since the red wax is something that most people would associate with Maker's Mark, I understand the judge's ruling. It has developed a secondary meaning in the world of alcohol, and therefore is protected. As the judge said, it's a strong trademark.

/never thought Trademarks class would be this helpful on Fark

Same here, that's why I took Copyright in law school. Took Admiralty Law just for kicks, and because I like boats.

I thought about taking Admiralty law, 'cause, you know, pirates. Had a scheduling conflict, so I didn't, but a friend of mine did. Who later told me that the course was basically 20% salvage rights and 80% waterborne workman's comp. So I think I dodged a bullet there.


No lessons in how to create liability shields for those crappy old oil tankers your client wants to purchase to save money? No registration of cruise liners under different flags to avoid workplace safety laws?
 
2012-05-20 06:03:25 PM
Damn, that site is funny. Look at this gem on the bottom of the page:

'[Bleep] With Me And You Will Have A Huge [Bleep]hole,' Warns Biglaw Partner

Go Texas!
 
2012-05-20 06:07:23 PM

12349876:
So you would be okay with a pizza chain using golden arches? Seems like a good analogy to me based on what I've read on this case.


Look... me and the McDonald's people got this little misunderstanding. They got the Golden Arches, mine is the Golden Arcs. They got the Big Mac, I got the Big Mick. We both got two all-beef patties, special sauce, lettuce, cheese, pickles and onions, but their buns have sesame seeds. My buns are little pizza crusts.
 
2012-05-20 06:12:37 PM

Guidette Frankentits: That's like me copywriting the way leaves fall from a tree and then suing Home Depot's garden center because their tree leaves falling off infringes on my copy write.


You are not allowed to talk about trademarks, patents, or copyRIGHT until you understand the difference between the right to copy and a copy to write.

/That is all
 
2012-05-20 06:14:43 PM

turbidum: Can anyone recommend a good, decently priced bourbon to try?


I'm a big fan of Bulleit.
 
2012-05-20 06:19:47 PM

t3knomanser: turbidum: Can anyone recommend a good, decently priced bourbon to try?

I'm a big fan of Bulleit.


My brother's favorite bourbon. Have you tried their rye? It is fantastic.
 
2012-05-20 06:21:34 PM
Bottles in question:

gpanglaw.com

It's about "trade dress" or how consumers distinguish a particular product. Apparently Maker's Mark thinks we're too stupid to notice the tequila label is bright and colorful (not to mention diamond-shaped) and the tequila wax seal (which is no longer used, btw) has a stamp in the wax while the bourbon seal does not - hell, a blind person can even tell them apart in this manner by feeling for the seal in the wax!

Interesting sidenote - Maker's Mark has trademarked the wax seal as a "distinguishing guise" in Canada.
 
2012-05-20 06:23:42 PM
Dripping vs. Dipping!

Who wants to go first?
 
2012-05-20 06:31:09 PM

Polish Hussar: turbidum: Can anyone recommend a good, decently priced bourbon to try?

My current potable of choice is Buffalo Trace. Usually go for Knob Creek in bars.

I enjoy Woodford Reserve, I usually see it at about the same price point as Knob Creek.


Beat me to it. If I'm not slumming with Evan Williams and have the extra $, it's WR over MM every time.

Not to nitpick, but how is 'price point' different from 'price'?
 
2012-05-20 06:34:19 PM

turbidum: Can anyone recommend a good, decently priced bourbon to try?

My current potable of choice is Buffalo Trace. Usually go for Knob Creek in bars.


One of my favorite little secrets is WL Weller Special Reserve. It's a solid little wheated bourbon, roughly on par with or maybe just below Makers. It makes a great mixer and is still smooth enough to drink on the rocks. The thing is that it's cheap cheap cheap: a bit under $20 a 750.

It's the perfect "everyday drinker". The quality you get for the price is what makes it stand out.
 
2012-05-20 06:42:01 PM

John Buck 41: Polish Hussar: turbidum: Can anyone recommend a good, decently priced bourbon to try?

My current potable of choice is Buffalo Trace. Usually go for Knob Creek in bars.

I enjoy Woodford Reserve, I usually see it at about the same price point as Knob Creek.

Beat me to it. If I'm not slumming with Evan Williams and have the extra $, it's WR over MM every time.

Not to nitpick, but how is 'price point' different from 'price'?


FWIW, I've seen "price point" used fairly frequently not to denote not the actual MSRP of the bottle, but the market range to which it is positioned. Which is a bit contrary to the definition of the word "point," but it is what it is.
 
2012-05-20 06:42:35 PM

John Buck 41: Polish Hussar: turbidum: Can anyone recommend a good, decently priced bourbon to try?

My current potable of choice is Buffalo Trace. Usually go for Knob Creek in bars.

I enjoy Woodford Reserve, I usually see it at about the same price point as Knob Creek.

Beat me to it. If I'm not slumming with Evan Williams and have the extra $, it's WR over MM every time.

Not to nitpick, but how is 'price point' different from 'price'?


My understanding is that while a $30 bottle and a $32 bottle are most definitely not the same price, they are at the same price point. As in, consumers are not going to be deciding between the two based on price.
 
2012-05-20 06:44:58 PM

John Buck 41: Not to nitpick, but how is 'price point' different from 'price'?


It's a marketing term. A general price range you're competing in. Say, Evan Williams and Old Crow Reserve are targeted at the same price point (even though the price isn't identical), though the EW is far superior.

Another example: Bourbons like Buffalo Trace, EW Single Barrel, and Knob Creek are all competing in the Sub $30 price point. There's a spread of prices, but they're all targeting the same general market.
 
2012-05-20 06:51:11 PM
As a MM Ambassador (yes they really have "Ambassadors") trust me when I say that I do not buy MM for the red wax dripping (which is really plastic anyway). Anything else is just a slow news day.

/we need a "Slow News Day" tag
//you are welcome to view my bio
///bourbon, cigars, ammo: ATF exists for a reason
 
2012-05-20 07:00:32 PM
Bourbon. Sucks.
 
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