Maker's Mark gets court seal of approval

The first time I visited Maker’s Mark bourbon in Loretto, KY, I was invited to dip a just-filled bottle in the distillery’s iconic melted red wax.

In my enthusiasm, I plunged the neck of the bottle into the molten vat a bit too vigorously, and wound up with dripping wax coating the neck, half the bottle and my hand up to the wrist. My face was as red as the wax.

That embarrassing moment has always stayed with me, so when I saw a legal decree involving the wax seal, it naturally caught my attention.

From now on, if you see a whiskey with a dripping wax seal on its and it doesn't say Maker's Mark on the label, you may be seeing something illegal.

The U.S. Court of Appeals for the Sixth Circuit has held that the red, wax seal that covers the stopper on bottles of Maker’s Mark bourbon is a protected trademark that must be used exclusively by that brand. The ruling follows a lawsuit in which Maker’s Mark Distillery Inc. sought to prevent a similar seal from being used on bottles of Jose Cuervo tequila.

It's not the use of a wax seal, per se, that is the problem. Lots of distillers use wax seals -- Knob Creek, for one, and even Cuervo for years. Rather, it is the design of the seal that Maker's Mark worries about.

Until 2001, Cuervo bottles had been crowned with a straight-edge seal, then the design was changed to an uneven style that made the wax look as if it were dripping down the bottle neck, a la Maker's which was trademarked in 1985.

Judge John Heyburn II of the District Court for the Western District of Kentucky ruled in favor of Maker’s Mark on the dual points of infringement and trademark validity. This was upheld on appeal at the Sixth Circuit.

In their ruling, the three appeal judges noted: "The company has bottled bourbon for commercial sale under the Maker’s Mark name, and has used a red dripping-wax seal on its Maker’s Mark bourbon bottles, since 1958. Maker’s Mark -- and craft bourbon generally – garnered national attention when The Wall Street Journal published a front-page article about the bourbon, the red dripping-wax seal, and the family behind it ['Maker’s mark goes against the grain to make its mark,' by David P. Garino, 1980]." Furthermore, the appeal judges noted, a 2002 Business Week report declared the dripping-wax seal "one of the most recognizable branding symbols in the world." Six years later, the "CBS Sunday Morning" show referred to the factory process for applying the feature as the "famous dip in red sealing wax."

These findings, said the judges, "support the district court’s ultimate conclusion regarding the breadth of market recognition of Maker’s Mark’s trademarked, red dripping-wax seal."

Also, the judges wrote, "There is more than one way to seal a bottle with wax to make it look appealing.

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