When George T. Stagg and Col. Edmund H. Taylor, Jr. parted ways effective January 1, 1887, Col. Taylor left behind the O.F.C. and Carlisle distilleries.  After many changes in ownership and names, that property is now Buffalo Trace, owned by Sazerac.  Col. Taylor, in the meantime, built the monument of a distillery known ever since as “The Old Taylor Distillery” in Millville, Kentucky.  The Old Taylor Distillery closed in 1972, but it kept its name (including the sign), and it certainly kept its spirit and legendary status.  While the brand name “Old Taylor” was bought and sold, eventually winding up with Sazerac, and the whiskey was made elsewhere, the property always remained The Old Taylor Distillery.

After decades of falling into serious disrepair, as noted in an earlier post and countless other articles, Peristyle LLC and Master Distiller Marianne Barnes came to its rescue and have been in the process of returning The Old Taylor Distillery to its former glory.  The new entrepreneurs were very careful to not call their business “The Old Taylor Distillery,” likely because Sazerac was claiming rights to the Taylor brand name.  A geographic location, however, does not follow a brand name that is bought and sold.

This week, months of negotiations and proceedings before the U.S. Patent & Trademark Office Trademark Trial and Appeal Board came crashing down with Sazerac’s filing of a federal lawsuit against Peristyle.  In its new lawsuit, Sazerac claims that it owns the trademarks “Old Taylor” and “Col. E. H. Taylor,” and that Peristyle is offering “event-hosting services” using Sazerac’s brands “and confusingly similar variations thereof.”

But all Sazerac could point to in its Compliant is Peristyle’s use of the true geographic name of the property – a name Sazerac could not bring itself to mention.  In fact, when referring in the Complaint to the historic site known as “The Old Taylor Distillery,” Sazerac ignored that name, and instead called it the “Frankfort Distillery.”  The only time Sazerac used the real name of the property in its Complaint was when it included a photograph showing the old sign still standing above the front door:

Sazerac should know that “The Old Taylor Distillery” is the name of the property, and that using a historically accurate geographic name is allowed.  In the 1880’s, a former ward and protégé of Col. Taylor, James E. Pepper, tried to prevent Labrot & Graham from using “Old Oscar Pepper Distillery” as the name of the distillery that is now Woodford Reserve.  The case of Pepper v. Labrot, 8 F. 29 (C.C.D. Ky. 1881) describes how the distillery built by Oscar Pepper in 1838 became known as the “Old Oscar Pepper Distillery.”  Oscar Pepper died in June 1865, and the distillery was leased to Gaines, Berry & Co. (a partnership that included Col. Taylor), and the distillery continued to be known as the Old Oscar Pepper Distillery.

James gained control of the distillery, but lost it in bankruptcy, and the property was acquired by Labrot & Graham, which continued to call it the “Old Oscar Pepper Distillery.”  James sued Labrot & Graham because he believed that only he should be able to use the “Pepper” name.  Labrot & Graham won the case, however, because they owned what was actually called the “Old Oscar Pepper Distillery.”   The court ruled that reference to “Old Oscar Pepper’s Distillery” meant the place of production, and was not a trademark.

Here, Sazerac seems to be attempting exactly what James Pepper failed to do – it’s trying to lay claim to all of Col. Taylor’s history and anything named after him.  While Col. Taylor certainly made a lasting impression with the O.F.C., he failed there in 1877.  It was after he moved to The Old Taylor Distillery that he became truly legendary through the passage of the Bottled-In-Bond Act of 1897 and through the brand he built at his castle.  That history cannot be suppressed by Sazerac.

My posts have recounted over 100 years of litigation between Kentucky Bourbon distillers, but there has also been a tremendous history of cooperation.  Bringing life back to an important, historic distillery, such as The Old Taylor Distillery, is one of those occasions when producers should have banded together and cheered on Peristyle.  Sazerac took the bully approach instead, and should be ashamed for trying to erase history.

There’s no shortage of lawsuits in bourbon history over brand names and images.  Many of those have dealt with using a family surname (link here), or calling a brand “Millwood” and trying to pass it off as “Mellwood” (link here).  While “Millwood” and “Mellwood” might be an obvious case of misappropriation, yet another Bourbon case helped make the gray line a little wider.

In the past year, consumers have noticed that Barton’s 1792 Ridgemont Reserve (owned by Sazerac) received an updated label design and name change.  Now “Ridgemont Reserve” has been abandoned and replaced with the words “Small Batch Bourbon.”  Sazerac explained the name change as being designed to emphasize “small batch” (which of course has no legal meaning) and because they wanted a “modern, sophisticated, and stylish package” so that it would “appeal to consumers who have a discerning taste for premium bourbon, and want a glamorous package too.”

I’ve seen this referenced as 1792’s first label update since it was introduced, but there was actually an earlier label with a slightly different name – “RidgewoodReserve” – that allegedly tried to misappropriate Woodford Reserve’s logo, trademarked label design and flask-shaped bottle.

Brown-Forman (the owner of Woodford Reserve in Versailles, Kentucky) took exception to Barton’s new brand that had the look, feel and sound of Woodford Reserve, and it sued Barton in federal court in Louisville in October 2003.  After only about six months (which is ludicrously fast for lawsuits) a trial was held and the court issued its ruling:  Barton had infringed on Woodford Reserve’s trademarks.

In Brown-Forman Corp. v. Barton Inc., No. 3:03-cv-00648-JBC (W.D. Ky.), the evidence showed that the marketers for Barton decided the best way for Barton to launch a new premium brand would be by “tying the product to geographic locations, historical figures or to bourbon history.”  Since the word “Ridgewood” was pulled straight out of thin air, the marketers “named” the existing still at the Barton Distillery the “Legendary Ridgewood Still.”  That’s right – overnight the still became “legendary” and had a name, all for the purpose of “legitimizing the Ridgewood Reserve name.”

Additionally, instead of creating a new and distinctive bottle or label, Brown-Forman found proof that the marketers were going for the “Woodford feel,” “with a goal of having a design equal to or better than Woodford Reserve or Jefferson Reserve.”

A company faced with a trademark infringement claim has a few options; Barton chose to go on the offensive with a countersuit.  While denying all along that it had infringed upon any Woodford Reserve trademarks, Barton decided to make its own claims which upped the ante and threatened the very essence of Woodford Reserve.  Barton brought to light a fact that it alleged was hidden from Woodford’s website or other marketing efforts:  the real source of the Bourbon in your Woodford bottle.

Barton alleged that Woodford Reserve had been touting its three copper pot stills, its cypress vats, its local limestone spring water, and its historic location, but that those marketing efforts were false, in violation of the Lanham Act (a federal law which prohibits any “false or misleading description of fact, or false or misleading representations of fact which … in commercial advertising or promotion, misrepresent the nature, characteristic, [or] qualities … of goods, services, or commercial activities.”).  Barton argued that these marketing efforts were exponentially worse than the “puffery” of Barton calling its still “legendary” or naming it the “Ridgewood Still” just before the launch of its new premium Bourbon.

Barton based its allegations on testimony from a Brown-Forman executive that Bourbon sold as “Woodford Reserve” was actually a blend containing someBourbon distilled in pot stills at the historic Woodford Reserve Distillery, but mostly Bourbon distilled in a column still at Brown-Forman’s distillery in Louisville, using Louisville water, and also aged in Louisville before being relocated to Versailles for additional aging.  Moreover, Barton alleged that until May 2003, every single drop of Woodford Reserve actually originated from Brown-Forman’s distillery in Louisville.  Basically, Barton alleged that Woodford Reserve was Old Forester in disguise.

It was true then – just as it is still true today – that Woodford Reserve and Old Forester share the same mash bill (72% corn; 18% rye; 10% malted barley) and yeast strain, and that Woodford Reserve Distiller’s Select contains Bourbon distilled both in Versailles and Louisville.  Chris Morris has acknowledged this many times (although, in my personal experience, some tour guides at Woodford Reserve have been evasive about the subject).

Even though Barton alleged that regular consumers were misled about “the true facts regarding the making of Woodford Reserve,” Brown-Forman was able to come up with enough proof of its disclosures to fight back against Barton.  For instance, the side label on Woodford Reserve at the time disclosed that Woodford Reserve is “distilled for, aged and bottled by Labrot & Graham Distillers Co., Versailles, Kentucky.”  The “distilled for” disclosure is yet another lesson in closely reading Bourbon labels.

Brown-Forman was so successful in its defense that Barton ultimately dropped its countersuit against Woodford.  And then Brown-Forman refocused on its own claims.  After trial, the Court entered an injunction against Barton for violating Woodford Reserve trademarks, it barred Barton from selling, shipping, advertising, or marketing Ridgewood Reserve, it ordered Barton to stop distributors and retailers from selling Ridgewood Reserve, and only allowed bottles currently in stock at retailers to be sold for 60 days.  “Ridgewood” became “Ridgemont” and the old name and legend vanished.

That’s the real story of the first label change for Barton 1792, and the so-called “Legendary Ridgewood Still.”