Brian Haara
Bourbon. Law. Author.
Sipp’n Corn Bourbon Law Update – Jack Daniel’s v. “Bad Spaniels” Dog Toy.
Ever since Old Crow and Old Taylor aggressively protected their trademarks in the 1800’s, setting the stage for current-day trademark law, whiskey has kept trademark attorneys busy.
Brown-Forman’s Jack Daniel’s brand and VIP Products’ “Bad Spaniels” dog toy now have the opportunity to establish limitations on how far an alleged “parody” use of another’s famous brand and trade dress can go before it becomes illegal infringement. On January 31, the Supreme Court of the United States set oral argument for March 22, 2023 in this epic legal battle.
Basically, VIP sells a dog toy that is shaped like a bottle of arguably the most famous brand of American whiskey and makes all sorts of “poop jokes” on the toy. It is indisputable that the dog toy’s look, design, and words are intended to trade on the brand recognition of Jack Daniel’s, but VIP insists that it’s all in good fun. In fact, in a brief filed with the Supreme Court where it tried to convince the Court that it should not even consider the case, VIP smugly argued that “It is ironic that America’s leading distiller of whiskey both lacks a sense of humor and does not recognize when it—and everyone else—has had enough. [Jack Daniel’s] has waged war against [VIP] for having the temerity to produce a pun-filled parody…” And when famous brands are made fun of, “the world did not end.”
Jack Daniel’s argues that the dog toy tarnishes its brand and is likely to confuse consumers. The First Amendment was never intended to protect speech that confuses and misleads consumers, and the Lanham Act restricts commercial use of protected Marks, so no matter how funny poop jokes might be, it’s no laughing matter to violate the law. Jack Daniel’s insists that it likes dog and jokes—including jokes at its expense—but VIP is mimicking Jack Daniel’s iconic trade dress to mislead consumers and to profit off of Jack Daniel’s goodwill. Plus, Jack Daniel’s doesn’t want its customers confused or have them “associating its fine whiskey with dog poop.”
The United States District Court in Arizona (where VIP is based) sided with Jack Daniel’s, but the Ninth Circuit Court of Appeals reversed, setting the stage for the Supreme Court to rule on whether anyone can use famous trademarks to sell dog toys or whatever else they want, as Jack Daniel’s suggests—“sex toys, drinking games, or marijuana bongs, … all in the name of just having fun.”
Sipp’n Corn Bourbon Law Update – Sazerac Hits Republic National with Friday the 13th Lawsuit.
News broke on January 3 that Sazerac was terminating its distribution relationship with Republic National Distributing Company and moving to numerous smaller distributors in about 30 states. This was such a massive change in the industry that a few days later, we covered it on the Bourbon Community Roundtable.
Now, just days after the release of that Roundtable episode, Sazerac sued Republic in federal court in Louisville on January 13. Sazerac came out of the gate with allegations that Republic has refused to pay for tens of millions of dollars for Sazerac products, has stopped payment on nearly $40 million of wholesale products, and that Republic has “bad-mouthed Sazerac in the marketplace.”
As we speculated on the Roundtable, Sazerac also complains and alleges that Republic failed to sufficiently promote Sazerac products to retailers and that Republic “would oftentimes improperly condition the availability of certain high-end (and highly sought after) Sazerac products, such as Pappy Van Winkle, to its retail accounts on the purchase of non-Sazerac products, commonly known as ‘tie-in’ sales.”
Although not mentioned in the Complaint, Sazerac and Republic had expanded their relationship as recently as 2019 when Sazerac bought 19 brands from Diageo. Republic added those new brands to its portfolio in seven states. According to its website, Republic serves almost 90% of the U.S. market volume and it uses its national reach to help supplies build relationships and reach their target consumers, which sounds like precisely what a large producer like Sazerac would need.
One new fact revealed by the Complaint is that Sazerac and Republic entered into a new global distribution agreement in 2021 and it was really Republic who terminated that Agreement, and that happened in summer 2022 (without any news splashes).
In total, Sazerac asks the Court to award it $38.6 million in damages through January 12, 2023, and that continued breaches will result in “at least an additional $48 million in damages.” Remember, Complaints only present one side of the story and Republic has not yet had an opportunity to tell its side of the story. The case is Sazerac Company, Inc. v. Republic National Distributing Company, LLC, No. 3:23-cv-00025.
Sipp’n Corn Book Review – Lawyerly Libations
I found a new book to add your personal collection or holiday gift list—Lawyerly Libations, Concoctions for the Counselor, Apéritifs for the Attorney, Elixirs for the Esquire, and Additional Alcoholic Anecdotes: A Cocktail Compilation for the Burgeoning Barrister’s Bar, by Michael J. McCormick.
While the title is a mouthful, and maybe only funny to a lawyer, don’t be dissuaded. The title is a tongue-in-cheek prelude to McCormick’s witty style, through which he showcases cocktail history while diving into related (sometimes tenuously related) legal stories and even more historical context. Better yet, the legal stories often wryly mock the absurdity of lawyers and the law, just like the title.
Lawyerly Libations tells a different story in each of its 21 Chapters (a shout out to the 21st Amendment) paired with 21 classic cocktail recipes. Chapter 7 has one of the best explanations of the Whiskey Rebellion with fun citations to Hamilton: An American Musical along with robust citations and footnotes for anyone interested in a more scholarly approach. Secretary of the Treasury Alexander Hamilton wanted to fund the nation’s debt by taxing domestic whiskey production—the infamous Whiskey Tax—which spawned rebellion in western Pennsylvania in 1791, and McCormick tells the rest of the story.
Plus, because using law as a resource wouldn’t be complete without raising a dispute, Lawyerly Libations tees up a fight for the first “American” cocktail. There’s a case to be made for the Old Fashioned, with its sheer simplicity and a recipe contained in the first U.S. cocktail recipe book in 1862. A better case is made for the Mint Julep, with its roots as a Persian tonic (گلاب / gulāb) and its arrival on our shores in the late 17th Century, the innovation of Virginia colonists who made it with mint leaves, and then through the mid-1800’s when ice became more readily available and it became more recognizable to what it is today. And a seemingly weaker case can be made for the Sazerac®, but in typical legal fashion, it’s the Sazerac that secured trademark protection for “America’s First Cocktail®.”
Lawyerly Libations is an entertaining and fast-paced read that has been impeccably researched. Consider it for at-home bartenders, drinks enthusiasts, history buffs, and, of course, lawyers in your life.
Lawyerly Libations, Concoctions for the Counselor, Apéritifs for the Attorney, Elixirs for the Esquire, and Additional Alcoholic Anecdotes: A Cocktail Compilation for the Burgeoning Barrister’s Bar
Author: Michael J. McCormick
Published: July 9, 2022
Purchased on Amazon for $13.99.
Sipp’n Corn Review – Nose Your Bourbon Part II; A New Mini Sample Kit
Need a gift?
I do enough guided tastings to know that sometimes you need a nudge—a reminder of an aroma memory—to help articulate what you’re experiencing during a bourbon tasting. I just helped a friend with a Bottled-in-Bond tasting of Heaven Hill 6-year (the discontinued one), E. H. Taylor Small Batch, and Henry McKenna 10-year.
My friend warned me that while he knew what he liked, he could never really find the words to describe what he was tasting. Because I discovered the Nose Your Bourbon Bourbon Nosing Kit in 2020 (see my review here: Sipp’n Corn Review), I suggested that my friend give everyone the new miniaturized Bourbon Sample Kit.
We started the guided tasting with the sweet aromas of brown sugar and caramel, moved onto the dark fruit note of cherry, shifted to corn grain, and then finished with black pepper and oak. This primed everyone’s senses and we jumped into the first bourbon with excitement to share impressions that, frankly, I had never seen in a previous guided tasting.
Check out the Sample Kit ($29.00 and free shipping) and never get left behind in a tasting.
Sipp’n Corn Bourbon Review – Old Fitzgerald Bottled in Bond Fall 2022 Decanter.
The spring edition of Old Fitzgerald was a surprising 17 years old. People went nuts. Then Heaven Hill followed it up with a 19-year old release and enthusiasts clamored for it like no Old Fitzgerald before. For the smart few who open their bottle, will it be worth the $240 price tag? Plus, now with two extra-aged releases, are the days of 8 and 9-year Old Fitzgerald a thing of the past? Heaven Hill certainly keeps us on our toes for each Spring and Fall release.
Old Fitzgerald Bottled in Bond Fall 2022
Bourbon: Old Fitzgerald Bottled in Bond Decanter Series
Edition: Fall 2022
Distillery: Heaven Hill
Age: 19 years
ABV: 50% (100 proof)
Cost: $240.00
Tasting Notes
Appearance:
Copper penny with a red hue.
Nose:
I expected more oak with the gaudy age statement. It’s still deep with mature oak and leather, but it’s also nutty with butterscotch candy sweetness, rounded out with black tea and a heady, nectarous honeysuckle.
Taste:
The balance is remarkable. With a creamy, buttery texture, the spicy oak coats your mouth as it shifts to vanilla, toffee, and pralines, and then turns back to oak with the full array of baking spices.
Finish:
The finish has a gear shift that I love, but at first, I mistook it as a short, flat finish. After a quick burst it faded but then it rebounded with sustained warmth. It’s oak-driven and dry, still with a touch of cocoa as it fades.
Bottom Line
Pair this with the Spring 2022 release of Old Fitzgerald and you have two of the top ten bourbons of the year, easily. These are remarkable bourbons and strong buys.
Disclaimer: The brand managers kindly
sent me a sample for this review,
without any strings attached.
Thank you.
Brian Haara 