6th Circuit, Drinking, Federal Judges, Intellectual Property

Wow, This Sixth Circuit Judge Knows A Lot About Bourbon

We’ve been dealing with a lot of negativity around here recently, what with the implosion of Dewey, the stress of finals, Texan lawyers flying off the handle. Seems like things are getting a little out of control. So, everyone, let’s just slow down and enjoy a nice story about drinking. Specifically the story of the recent Sixth Circuit decision about good old Kentucky bourbon.

The case involved an intellectual property dispute between Maker’s Mark and Jose Cuervo tequila. And the ruling begins with an epic six-page discussion about the history of whiskey.

I’m not complaining, but the opinion might have worked better as a history lesson…

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. Take that, Mexican liquor that makes people do crazy s**t! Don’t even try to mess with our American whiskey!

I’m no IP junkie, but I am a big fan of whiskey. On that level, the decision is fascinating. For example, did you know that (citations omitted):

The legend of the birth of bourbon is not without controversy: “As many
counties of Kentucky claim the first production of Bourbon as Greek cities quarrel over the birthplace of Homer.” The generally accepted and oft-repeated story is that “the first Bourbon whiskey… made from a mash containing at least fifty percent corn, is usually credited to a Baptist minister, The Reverend Elijah Craig, in 1789, at Georgetown, [Kentucky],” just prior to Kentucky’s joining the Union as a state in 1792.

The judge likes his whiskey. Nothin' wrong with that.

Well, thank you, American Jesus for Reverend Craig! And this just scratches the surface of Judge Martin’s well-written history lesson. (Side note: I’m not surprised to learn that the veteran jurist lives in Louisville.) He continues with an explanation of the legislative history of bourbon in the United States:

Federal regulations require that bourbon whiskey to, among other things, be aged in charred new oak barrels, contain certain proportions of mash ingredients, and be barreled and bottled at certain proofs. Importantly, whiskey made for consumption within the United States cannot be called bourbon unless it is made in the United States.

There are a bunch more gems in the first few pages of the ruling, including shout-outs to President William Howard Taft and author Ian Fleming, the creator of James Bond (it turns out Fleming preferred bourbon, unlike his famously suave protagonist). It’s not worth trying to cherry pick the best block quotes, but for all the lawyerly Ron Swansons out there, it’s worth taking a look at the opinion.

Seeing as it’s Friday evening, all this talk about whiskey is making me thirsty. I think it’s time for me to make a drink and maybe start packing for my big move from Oakland to San Francisco tomorrow. Bottoms up everyone.

Maker’s Mark Distillery v. Diageo North America [Sixth Circuit]
Sixth Circuit: Wax Seal on Maker’s Mark Bourbon Is Protected [Wall Street Journal Law Blog]

(hidden for your protection)

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