Colbert told the judges that Cuervo had no need to use the wax seal because it serves no purpose other than eye-catching looks.Īttorneys for Diageo and Cuervo argued that using a wax seal wouldn't cause customers to confuse the company's tequila with the bourbon or believe the two companies were affiliated. "We've been confident in our position all along, and today's outcome confirming that our unique trade dress cannot be infringed is great news for fans of Maker's Mark, those who handcraft our bourbon, and those who individually dip each bottle every day," Samuels said.ĭiageo said in a statement the company was disappointed with the ruling, but there would be no practical effect because neither Diageo nor Cuervo has used red wax seals since 2004.Īt oral arguments in December, Maker's Mark attorney Edward T. Rob Samuels, chief operating officer of Maker's Mark, said the decision is "a resounding affirmation" that the seal is "off limits to competitors." The court also upheld Heyburn's decision to award Maker's Mark $66,749 in attorney's fees. "We conclude that there is a likelihood of confusion between the products and that Cuervo has infringed," Martin wrote for judges Karen Nelson Moore and Deborah L. Martin wrote for the court that "there is more than one way to seal a bottle with wax to make it look appealing." Cuervo dropped the dripping wax seal six years ago. It sued over the seal in 2003, claiming it violated the long-standing trademark. Maker's Mark, bottled in Loretto in central Kentucky, spends about $22 million annually to market its bourbon and sells about 800,000 cases a year.
market in 2001 in a limited production of 3,000-to-4,000 bottles. The bottles of Reserva with the new seal entered the U.S. The trademark held by Maker's Mark describes the seal as a "wax-like coating covering the cap of the bottle and trickling down the neck of the bottle in a freeform irregular pattern." The trademark application doesn't refer to a specific color, but Maker's Mark told the court it has sought to enforce the trademark only as it applied to the red dripping wax seal.ĭeerfield, Ill.-based Fortune Brands, which now owns Maker's Mark, has since split its liquor business into a new company called Beam Inc.Ĭuervo opted to include a dripping wax seal on bottles in 1997 as part of an effort to create an artisan look. The seal, perfected by Margie Samuels in the family's deep fryer, doesn't serve any practical purpose in keeping the bottle closed.
The Samuels family, which created Maker's Mark in 1958, trademarked the distinctive seal in 1985. He even cited the bourbon brands preferred by 19th century statesmen such as Ulysses S. "Distillers compete intensely on flavor, but also through branding and marketing the history of bourbon, in particular, illustrates why strong branding and differentiation is important in the distilled spirits market," Martin wrote. Martin, who noted at oral arguments in December that "Maker's Mark is not cheap," displayed a detailed knowledge of the history and manufacture of bourbon, writing that "corn-based mash and aging in charred new oak barrels impart a distinct mellow flavor and caramel color." Martin waxed poetic about the history of Kentucky's most famous distilled spirit. In a 19-page opinion affirming that decision, Judge Boyce F.