Judge Rules: Drunk Moron In A Hurry Wouldn't Know Tequila From Maker's Mark

from the wax-on,-wax-off dept

Fri, Apr 16th 2010 4:07pm — Dennis Yang

After seven years in the courts, a federal judge has ruled that a dripping red wax seal can only be used by Maker's Mark bourbon. While no monetary damages were awarded, the judge issued an injunction to prevent Diageo and Casa Cuervo from using a dripping wax seal on their tequilas, specifically, their high-end tequila, Cuervo Reserva. Maker's Mark has held the trademark (pdf) on the dripping wax since the 50s; Cuervo Reservo launched with their dripping wax design in 2001, after using a non-dripping wax seal in previous years. Call me a moron in a hurry, but these tequila bottles really don't remind me of Maker's Mark one bit.

That said, the injunction won't really affect Cuervo that much right now, since they stopped the dripping wax design after 2007 in favor of a cleaner wax seal, but that might not even matter -- Maker's Mark filed a second suit in 2009, alleging that even a non-dripping bottle still infringes upon their trademark. That suit seems even more ridiculous, since wax seals are commonly used to seal not just liquors, but also anything from wine to vinegar to honey.

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Filed Under: bourbon, jose cuervo, maker's mark, tequila, trademark
Companies: diageo

43 Comments

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Anonymous Coward, 16 Apr 2010 @ 4:29pm

Wouldn't a wax seal fall under patent and not trademark? Unless it's a logo of a wax seal or something.
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Esahc (profile), 16 Apr 2010 @ 4:32pm

I shall now go home and drink Rum.
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Anonymous Coward, 16 Apr 2010 @ 4:35pm

Re:
I dunno. Is the old guy that invented wax seals centuries ago gonna get pissed because we're messing with his ability to create new work?

I know I'm still trying to get my patent for the wheel processed. Sharp sticks are coming next.
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Anonymous Coward, 16 Apr 2010 @ 4:59pm

Re: Re:
Someone already has a patent on the wheel. You're too late.
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Anonymous Coward, 16 Apr 2010 @ 5:11pm

According to the article this is a non-functional wax "seal". If it were functional it would not be entitled to trademark protection, which brings up an idea: If Cuervo really wants to use wax seals on their products, make sure they actually serve a purpose.
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DJ (profile), 16 Apr 2010 @ 5:13pm

Monster effect...
This has become an epidemic. Apparently Monster cable started a fad....
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Stephen, 16 Apr 2010 @ 5:24pm

maker's mark ambassador
As a Maker's Mark Ambassador who frequently gets little tchotchkes from the company, even though I don't drink MM that much anymore, I'm in an admittedly conflicted situation when it comes to commenting, but I'm also perfectly placed for the same reason to say that MM doesn't just use the wax on their bottles. It's the basis for their brand's recognition, like Tiffany blue. A representation of the wax in that particular shade of red adorns all the things they put out, whether it be notecards or golf balls, so that when you see the red wax you think MM. While, it's hardly a novel idea to seal a bottle with wax, the tequila company is clearly trying to glom onto MM's high-end symbol for their own game, a symbol MM has developed over 50 years.

And having also been part of a market research group for a rum company trying to emulate the success of high end vodka through package design, I can assure you that the bottle is as important to liquor as it is to perfume.
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Stephen, 16 Apr 2010 @ 5:25pm

Re: maker's mark ambassador
"doesn't just use the wax on their bottles" as a way to seal them or as decoration, I should have added.
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teknosapien, 16 Apr 2010 @ 5:33pm

Wait you mean there is alcohol
in that bottle -- that violates....
is anyone else getting ired of this crap?
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ElijahBlue (profile), 16 Apr 2010 @ 5:36pm

How many great ideas are abandoned, bursts of inspiration are extinguished because of these abusive (and stupid) copyright, patent and trademark lawsuits? I've noticed recently that the most inane advertising slogans now bear a copyright or TM logo - slogans so dumb I can't even pull one from memory to post here. Some of the print ads I've seen recently are recycling common everyday sayings - capping the sentence with a copyright or TM mark.
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Anonymous Coward, 16 Apr 2010 @ 5:51pm

Does anyone have any IP on putting booze in a glass container?
'Cause I'm interested in submitting a claim on that little bugger.
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abc gum, 16 Apr 2010 @ 6:05pm

I like tequila.

When I am looking to purchase a bottle, I have never considered the presence (or absence) of wax.

I look at reviews, some online, of tequila and decide that I would like to try a particular brand ... that being said, I would never think the presence (or absence) of wax would make any differnce at all.

Maybe others think wax is a big deal ... I can not envision why.
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Anonymous Coward, 16 Apr 2010 @ 6:12pm

Re:
Make the wording fancy though. Like,

"A Method of improving the enjoyment of a liquidized luxury by transferring an alcoholic beverage into a silicon dioxide container."

Given the patent on the wheel, this might actually work.
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senshikaze (profile), 16 Apr 2010 @ 6:18pm

Re:
i can.

People are idiots.
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Anonymous Coward, 16 Apr 2010 @ 6:24pm

Re: Re:
How about this.

"A method of alleviating toxic overload by releasing methane into the atmosphere."

What do you suppose that patent is for?

See, the trick here is to confuse the unsuspecting patent examiner into thinking that what you're proposing is somehow new and innovative by using fancy words.
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Chargone (profile), 16 Apr 2010 @ 6:38pm

Re: Re:
the cause of, but sadly not solution to, most of the world's problems. (though not all of them)
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slander (profile), 16 Apr 2010 @ 8:26pm

Maker's Mark is bottled in Kentucky. Judge John G. Heyburn II's court is in Kentucky. Diageo and Casa Cuervo are not.

Ruling in favor of the plaintiff. Case closed.
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JEDIDIAH, 16 Apr 2010 @ 9:03pm

Drunken rage.
I dunno. This sort of BS makes me want to go to my favorite purveyor of strong drink and buy some of this Maker's Mark crap (never bought it before actually) just so I can have the pleasure of smashing the bottle in protest.
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JEDIDIAH, 16 Apr 2010 @ 9:10pm

Re: maker's mark ambassador
Nonsense.

The liquor is what is important. The fact that you can fleece the rubes by putting substandard crap in a fancy bottle with a pretentious name isn't something you should brag about.

You're crass and your customers are stupid and have no taste.

A Scarlet Pimpernel wax seal is pretty irrelevant. The judge must be a total teetotaler.
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Ian (profile), 16 Apr 2010 @ 9:13pm

Trademark Issues
The issue is not whether a moron in a hurry would confuse bourbon with tequila, the issue is whether they might see a similar marking on the tequila and think that they were made by the same company or otherwise related. I don't think it's a frivolous claim--particularly as trademarks (unless they are 'famous marks', which this wouldn't qualify as) are limited to the domain they are registered in (ie, liquors). Given that the dripping wax design was actually the most distinctive thing about the bottles, it seems sensible that it'd be covered. Also, keep in mind that the degree of similarity permitted does depend on the context in which buying decisions are made for these sorts of products--the fact that the moron might be drunk actually is relevant here. That said, I think the second suit goes too far
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JEDIDIAH, 16 Apr 2010 @ 9:14pm

Not even in the same aisle
This is much like Apple versus Apple Records when it comes to that original trademark. You really are not going to be in a position to mistake Makers Mark for some Tequila. They just aren't going to be close enough. The close proximity of Jose Cuervo is likely to clue you in that you are not in the Burbon aisle.

This reminds me of some Green Acres episode where some relative of Haney is the judge or the building inspector...
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keith (profile), 16 Apr 2010 @ 9:54pm

who cares
makers mark is not very good bourbon anyway, and their tour is subpar. pretty much anything from buffalo trace beats it hands down. so does the elijah craig (both the 12 and 18 year) from heaven hill, and then kentucky spirit and russels reserve from wild turkey. so much great bourbon to drink, why waste your money?

~$20 range, buy elijah craig 12 year. nothing beats it for that price.
~$40 kentucky spirit or elijah craig 18 year
~$60 william larue weller - barrel proof, unfiltered (one of the best bourbons you'll ever drink, period)
~$120+ pappy van winkle - 20 or 23 year old ...

enjoy.
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Anonymous Coward, 17 Apr 2010 @ 8:35am

Re: Re: maker's mark ambassador
First, let me also offer the disclaimer that I'm a Maker's Mark ambassador. That said, the liquor isn't all that's important. It IS important, and that's why Maker's Mark makes it in small batches, which AREN'T substandard, unlike mega-distillers such as Jack Daniels and Jim Beam, but brand recognition is ALSO important.

Maker's Mark has been using the dripping wax seal as part of their brand identity for over half a century. If I walked down the aisle of a liquor store, and saw another bottle whose top was similarly dipped, I'd assume there was some sort of connection with Maker's Mark, as would many people. The plain (undripping) wax seal is another matter, but it's certainly within Maker's Marks rights to let a court decide that as well (you're required to protect your trademarks, remember?). Not saying they should win that one, but that's why we have legal review.
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Anonymous Coward, 17 Apr 2010 @ 8:36am

Re: Drunken rage.
Good for you, a sale is a sale. However, you might want to try the bourbon first, it's top rate!
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Anonymous Coward, 17 Apr 2010 @ 8:39am

Re:
Obviously, they're going to file suit locally. They'd be pretty stupid not to.
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Anonymous Coward, 17 Apr 2010 @ 8:45am

Re: Trademark Issues
Exactly! Mike seems to have missed the point on this one. If someone else put a lemon-lime drink in a trademarked coke-shaped bottle, I'm willing to bet that Coca-Cola would sue (and win), despite it being impossible to mistake coke for a lemon-lime soda. It's about brand recognition and trade dress, not mistaking one product for another, and since they're all beverages (and in this case, alcoholic beverages, an even narrower subset), a similar distinctively packaged alcoholic beverage would possibly imply a connection.

The fact that other products have used wax seals is irrelevant, since this is a trademark, not patent, litigation.
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Willton, 17 Apr 2010 @ 9:05am

Re:
I like tequila.

When I am looking to purchase a bottle, I have never considered the presence (or absence) of wax.

I look at reviews, some online, of tequila and decide that I would like to try a particular brand ... that being said, I would never think the presence (or absence) of wax would make any differnce at all.

Maybe others think wax is a big deal ... I can not envision why.

You don't get it. A dripping red wax seal is not an indication of quality; it is an indication that it is made by the distillers of Maker's Mark. If something is used on a bottle to indicate the quality of the liquor inside, that something would be functional, not a trademark. But when something that is used on a bottle is only done so in order to call attention to the source of the goods, then it is a trademark.

Now, if you associate Maker's Mark with high quality liquor, then perhaps I could see why you would associate a dripping red wax seal with the same. But that is a function of the goodwill developed and imparted by the distillers of Maker's Mark, not a function of what a wax seal represents in general.
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Willton, 17 Apr 2010 @ 9:12am

Re: Re: Trademark Issues
Exactly! Mike seems to have missed the point on this one. If someone else put a lemon-lime drink in a trademarked coke-shaped bottle, I'm willing to bet that Coca-Cola would sue (and win), despite it being impossible to mistake coke for a lemon-lime soda. It's about brand recognition and trade dress, not mistaking one product for another, and since they're all beverages (and in this case, alcoholic beverages, an even narrower subset), a similar distinctively packaged alcoholic beverage would possibly imply a connection.

The fact that other products have used wax seals is irrelevant, since this is a trademark, not patent, litigation.

Well said. Good luck getting Mike to acknowledge that he's wrong, though.
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TW Burger (profile), 17 Apr 2010 @ 2:06pm

Re: Re: Drunken rage.
I usually drink Wild Turkey or Gentleman Jack. Maker's Mark is a bit overpriced.

Back to the discussion topic... A wax seal seems a bit of a generic packaging gimmick. What's next, a judge ruling the gift wrapping counter at Sacks department store is the only one allowed to use blue ribbons?
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btrussell (profile), 17 Apr 2010 @ 2:15pm

Re: Re: Trademark Issues
I'd be willing to bet that coke or any other brand with recognition would use that recognition to sell new product. Not try to make it look different and hide any and all connections.

If people can't read anything more than a wax gob...
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Anonymous Coward, 17 Apr 2010 @ 2:16pm

Re: Re: Re:
are they collecting monopoly rents?
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abc gum, 17 Apr 2010 @ 2:36pm

Re: Re:
Previously, I had not associated anything with red wax. But now I do. Now I associate red wax with stupidity.

Yes, I do "get it". Possibly you did not understand.

What I do not "get" is brand loyalty, something which several posters here including yourself seem to be engaged in.
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abc gum, 17 Apr 2010 @ 2:40pm

Re: Re: Trademark Issues
"Mike seems to have missed the point on this one."

You look confused, possibly you could ask Dennis Yang about that.
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abc gum, 17 Apr 2010 @ 2:42pm

Re: Re: Re: Trademark Issues
Good luck recognizing who to accuse of being wrong
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BearGriz72 (profile), 17 Apr 2010 @ 7:29pm

Re: Re: Re: Trademark Issues
Apparently people can not seem to figure out that Mike is not the only poster on this site....
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Anonymous Coward, 18 Apr 2010 @ 12:54am

Re: Re: Trademark Issues
"If someone else put a lemon-lime drink in a trademarked coke-shaped bottle"

That sounds like fraud.

"It's about brand recognition"

uhm... brand recognition. That means the ability to recognize a brand, IOW, the ability to recognize whether or not something belongs to coke.
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Any Mouse, 18 Apr 2010 @ 9:38am

Re: Re: Re: maker's mark ambassador
You are required to protect your trademarks. To an extent. Trying to expand your trademark past what was applied for? Eeehnnn... I can't see that as anything other than being petty.

As for your idea of standard and substandard, I would wager to say that Jack Daniel's is closer to the standard. Maker's Mark? Doesn't hold a candle to Glenlivet.
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Just Another Moron in a Hurry (profile), 19 Apr 2010 @ 7:15am

Wrong Moron
I was going to post something witty here. My username practically demands it. However, given that I'm completely sober at the moment, I don't think I'm the moron you are looking for.
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Willton, 19 Apr 2010 @ 3:24pm

Re: Re: Re:
Previously, I had not associated anything with red wax. But now I do. Now I associate red wax with stupidity.

Yes, I do "get it". Possibly you did not understand.

What I do not "get" is brand loyalty, something which several posters here including yourself seem to be engaged in.

Well, then you are in the minority. Brand recognition is the reason companies use names and marks on the face of their products: it lets the consumer know who the source of the product is. And if the consumer associates a certain level of quality with such a name or mark, then the consumer will act accordingly when presented with the option of buying the product. That's the power of brand loyalty. Surely you must understand that.

Perhaps brand loyalty is of no concern to you. That's fine. But to say that you don't "get" brand loyalty is either evident of your ignorance or indicative of your arrogance.
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another mike (profile), 21 Apr 2010 @ 3:51pm

Re: Re: Re: Drunken rage.
Wild Turkey? Really?
I think I've found the problem. Maker's Mark isn't overpriced, you're underfunded!
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another mike (profile), 21 Apr 2010 @ 4:02pm

Re: Not even in the same aisle
That's not the case in our grocery store. The bourbon and whisky are right across the aisle from the tequila, vodka, and gin. It's even worse at the liquor store; they're all just a few feet apart along the same wall.
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Marcus Carab (profile), 21 Apr 2010 @ 6:42pm

Re:
I think they are talking about a logo of a seal. But either way, if it's purely an adornment as part of the branding it is a trademark issue -- though the idea that a wax seal can be trademarked is somewhat ridiculous. \
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lrobbo (profile), 30 May 2012 @ 12:34pm

Trademarking a wax seal, good stuff, there are no limits to the utter drivel these companies try to pass off, man, my head hurts
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