Brian Haara

The Duke v. Duke University – and what’s Wild Turkey got to do with this?

Posted on July 9, 2014 by Brian Haara

*Updated August 8, 2014 after Duke University filed a Motion to Dismiss in response to the Complaint, and after numerous requests to Duke Spirits and Wild Turkey for information.

Last week John Wayne Enterprises, LLC sued Duke University over the use of John Wayne’s nickname, “Duke.” In February 2013 John Wayne Enterprises filed a trademark application to register the mark “Duke” for use with alcoholic beverages except beer. Duke University filed an objection to this and other uses of “Duke,” claiming that it would cause confusion and dilute and tarnish Duke University’s trademark. The Complaint calls Duke University’s position “ludicrous.” Remember folks, Complaints only tell one side of the story.

Here’s an image of the planned 88-proof Kentucky Straight Bourbon Whiskey provided to the Court:

And Click here to viewa copy of the entire Complaint.

Comment below or on Twitter on whether you think “Duke” should be allowed as a bourbon brand. In the meantime, I’m looking into why “Duke Spirits” is not registered to do business with the Kentucky Secretary of State and into the statement on the back label that Duke Bourbon has been crafted in collaboration with Jimmy and Eddie Russell (without mentioning Wild Turkey).

UPDATE

On August 7 Duke University filed a Motion to Dismiss in response to the Complaint, arguing that a lawsuit in California is improper and arguing that the lawsuit was premature.

Duke Spirits has refused to comment, despite numerous requests. It also came to light since my original post that Duke Spirits changed its TTB-approved label (see left side of image below), which claims that the bourbon was “crafted in collaboration with legendary Master Distiller, Jimmy Russell” and later mentioned Jimmy again, along with Eddie Russell. The label actually used by Duke Spirits omits any reference to Jimmy or Eddie Russell.

Remember, Duke Spirits claims on its Twitter profile to be “An artisan distiller crafting small batches of superior bourbon, whiskey and brandy. Calistoga, California.” And while the label states “Distilled by Duke Spirits, Lawrenceburg, Kentucky”, Duke Spirits is not registered to do business in Kentucky and apparently is not located in Lawrenceburg or anywhere else in Kentucky.

Wild Turkey was more forthright in responding to me, for which I’m thankful, but it claimed to be bound by a confidentiality restriction, so it could neither confirm nor deny that Duke Bourbon is really Wild Turkey (even though the cat seems to be out of the bag through the TTB-approved label).

I’ve never rooted for Duke University for anything. I guess there’s a first time for everything.

James E. Pepper’s Fraud Previews The Taft Decision.

Posted on July 3, 2014 by Brian Haara

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There’s a rule in the law that when you ask for an injunction, you can’t have been a bad guy too. In 1893 when James E. Pepper tried to protect his “Old Pepper” brand, he learned this rule the hard way.

The events described in Krauss v. Jos. R. Peebles’ Sons Co., 58 F. 585 (S.D. Ohio 1893) all take place after James Pepper went bankrupt in 1877 and lost his father’s distillery in Versailles, Kentucky – the famed “Old Oscar Pepper Distillery” where Old Crow was born – to Labrot & Graham. They also take place after Pepper unsuccessfully sued Labrot & Graham (here’s my Pepper v. Labrot & Graham post).

After losing his father’s distillery and losing the right to use the “Old Oscar Pepper” name, James Pepper built a new distillery in Lexington, Kentucky. He started distilling there in May 1880 and designed this new shield trademark, which he printed on gold paper for labels:

As many new whiskey distillers know, starting a new distillery has high front-end expenses with a long wait before any whiskey is fit to sell. Perhaps to account for this reality, Pepper sold newly-filled barrels to the Jos. R. Peebles’ Sons Co., a large Cincinnati grocer and liquor dealer, for aging and bottling, and kept other barrels in his own warehouse.

Then, after six years of aging, Pepper was ready to sell his first run of bourbon in 1886. Peebles was also selling (and had been selling) this bourbon under the “Old Pepper” brand, but after Pepper got into the bottling business, he supplied the gold shield labels to Peebles and other bottlers. Pepper also continued bulk barrel sales to Peebles after 1886, through 1893, when Pepper decided make Otto Krauss his sole distributor, and contracted with Kraus to sell him 30,000 cases per year, plus 1,000 barrels of bourbon and 500 barrels of rye per year.

Peebles still had a large supply of Old Pepper bourbon, so it continued to bottle and sell it, using the same labeling it had always used. Krauss took exception (and I’ve read separately that James Pepper was a silent partner with Krauss), and sued Peebles in the spring of 1893, asking for an injunction to prohibit Peebles from labeling its bottles as “Old Pepper.”

The judge for the case was none other than William Howard Taft, Sixth Circuit Judge from 1892-1900, before his single term as President (1908 – 1912) and eventual service as United States Supreme Court Chief Justice (1921 – 1930). Whiskey fans most likely know him as President Taft for his “Taft Decision” in 1909, which clarified the Pure Food & Drug Act and finally answered the question “What is whiskey?” by defining “straight,” “blended” and “imitation” whiskey.

Circuit Judge Taft found some disturbing evidence in the case that might have influenced his “Taft Decision” as President 16 years later. Evidence was presented showing, despite Pepper’s labels and guarantees to the public, that at least since December 1891 he had been buying bourbon from other distilleries and blending it with his own bourbon – all the while still guaranteeing to the public that it was distilled by him, as genuine and unadulterated Old Pepper.

The percentages varied each month, but Judge Taft recited the exact percentage of “foreign” whiskey that Pepper blended into his bottles of Old Pepper on a monthly basis over the course of 19 months. It was often over 50% foreign whiskey, with a high of 66% foreign whiskey in one month, and an average of over 1/3 of every bottle being foreign whiskey over that period. Judge Taft took Pepper and Krauss to task. He recited all of the express guarantees contained all over the Old Pepper label that it was pure, unmixed with other whiskey, that the bottle contained nothing but Old Pepper bourbon distilled at the James E. Pepper Distillery in Lexington, by James Pepper himself. Judge Taft ruled that this was “a false representation, and a fraud upon the purchasing public,” and “the public are entitled to a true statement as to the origin of the whisky, if any statement is made at all.”

So Krauss and Pepper could not stop Peebles from using the Old Pepper trademarks because Krauss and Pepper were themselves engaged in fraud. I’d be willing to bet that this 1893 decision influenced President Taft in 1909 when he defined the standards for labeling whiskey. In fact, in 1909 President Taft wrote that through his decision, “the public will be made to know exactly the kind of whisky they buy and drink…” That’s an admirable goal that we’re still working toward today, as we’re faced with similar resistance from a few producers and non-distiller producers, along with sometimes lax enforcement of existing laws by TTB. James Pepper might have fared better today with TTB than he did in 1893 against Taft.

Sipp’n Corn Bourbon Review – Elijah Craig 12 Year Barrel Proof – Three Editions

Posted on June 29, 2014 by Brian Haara

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It’s no secret that Elijah Craig 12-Year is one of the best values of all of bourbons (usually under $30.00). Heaven Hill has taken its popular Elijah Craig 12-Year bourbon to new heights with small batch barrel proof editions. This review compares the Evan Williams Bourbon Experience gift shop edition (129.7 Proof; the only white label), with the third edition (133.2 Proof; brown label) and the just-released fifth edition (134.8 proof; brown label). Look for the latest edition at your favorite retail stores because the price is a bit higher at the Bourbon Experience ($40 range at retail vs. $55 at the Bourbon Experience) and, unfortunately, I’ve confirmed with the Bourbon Experience that they’re out. Wherever these land, they’ll be gone in a heartbeat.

The Elijah Craig 12-Year Barrel Proof batches have all forgone chill filtering, which contributes to the dark brown color and leaves more flavors behind, but which also results in a slight cloudiness when water is added. Chill filtering involves chilling the whiskey significantly, so fatty acids and proteins created during distillation can be filtered out, thus removing cloudiness in the bottle. I understand this is done for mostly cosmetic reasons.

Elijah Craig 12 Year Barrel Proof – 129.7 Proof ($54.99 – Bourbon Experience price)

I reviewed this edition of EC12 against other high-proof options last December (“The High Octane Challenge”). The color is outright mahogany brown. On re-taste, the nose is more complex than the other two, blending caramel, oak and apple, with only a slight burn from the high proof. The taste is really remarkable, with more sweetness of caramel, vanilla and butterscotch, along with pepper and cinnamon spice and hints of oak and almonds, with some slight dark chocolate bitterness. The finish featured these same flavors too, along with a hint of mint, and it was really long and warm.

Elijah Craig 12 Year Barrel Proof – 133.2 Proof ($54.99 – Bourbon Experience price)

The winter’s edition seems to be the darkest brown of the three. The nose has deep oak and leather notes, along with brown sugar. The initial taste gave the strongest and hottest bite out of the three, even though it’s not the highest proof (but show me someone who can distinguish 134.8 proof from 133.2 proof…). Remember, the ABV calculates to 66.6, so maybe it’s just the power of suggestion. In addition to the heat, this edition seems to be the spiciest, but after a splash of water, sweet flavors opened up, but it’s still dark cherries, nuts, oak and deep earthy flavors. This one had the longest finish of the three.

Elijah Craig 12 Year Barrel Proof – 134.8 Proof ($54.99 – Bourbon Experience price)

Dark brown color? Check. This edition has the hottest nose, so seriously, don’t inhale too intensely before you add water. Water removes the sting and opens up balanced caramel, oak and pepper. The taste balanced those same flavors with an incredibly robust blast. Try this one with different amounts of water and you’ll see definite changes in flavor profile, bringing out some vanilla, toast and dark fruit flavors. The finish was long like the others, but probably better balanced than the third edition.

Bottom Line:

I’ve also tried the first release (a 134.2 proof gem) shared by a friend. Like the editions that followed, it was tremendous, and had slightly different flavors like caramel apple and cinnamon crumb cake. But out of all that I’ve tried, the 129.7 proof white label expression nudged out its higher-proof brothers. Each of these editions has its own distinct characteristics, but of course they also have a lot of similarities. After all, they’re all Elijah Craig, they’re all 12 years old, and they’re all relatively close in time on distillation (and therefore aging seasons). I would expect future editions to have a little more variation from these three since those barrels will have experienced different aging seasons.

In addition to all being excellent, one of the most surprising features to me is the drinkability at such a high proof. Don’t drink a whole glass neat, but definitely try it for the full experience, and also enjoy what a Glencairn or NEAT glass can do for the nose (although the nose is astounding even without a special glass). Then you’ll want to use ice and a splash of water to lower the proof, but be careful to not go anywhere near the standard 94 proof.

Score on The Sipp’n Corn Scale:

EC12 – 129.7 Proof: 4.5

EC12 – 133.2 Proof: 4.0

EC12 – 134.8 Proof: 4.25

The Sipp’n Corn Scale:

1 – Wouldn’t even accept a free drink of it.

2 – Would gladly drink it if someone else was buying.

3 – Glad to include this in my bar.

4 – Excellent bourbon. Worth the price and I’m sure to always have it in my bar.

5 – Wow. I’ll search high and low to get another bottle of this.

Want more information on the non-gift shop Elijah Craig Barrel Proof releases? Check out this great summary by Bourbonr: Elijah Craig Barrel Proof Release Cheat Sheet.

Sipp’n Corn Bourbon Review – Wild Turkey Diamond Anniversary

Posted on June 26, 2014 by Brian Haara

Frazier v. Dowling – The Pre-Prohibition Fight Over Waterfill & Frazier.

Posted on June 25, 2014 by Brian Haara

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Waterfill & Frazier is best known as the bourbon brand that fled to Juarez, Mexico under the leadership of Whiskey Woman Mary Dowling (1859-1930), and which while in Mexico, produced whiskey that made its way back into the States still labeled as “bourbon.” Mary Dowling is part of the reason why U.S.-based distillers fought for labeling laws and strict limitations on what could be called “bourbon.”

While Mary Dowling had her share of adventures and litigation (bootlegging charges that were only dismissed on appeal because the court reporter had died, tax charges related to her distilleries after Prohibition was enacted, and more), a lawsuit from the 1890’s threatened the very brand of “Waterfill & Frazier.”

As explained in Frazier v. Dowling, 18 Ky. L. Rptr. 1109, 39 S.W. 45 (Ky. 1897), this case involved family drama plus the common theme of bourbon distillers trying to benefit from the established name of another brand.

The Waterfill family had been in the distilling business since the early 1800’s in Tyrone, Kentucky (near Lawrenceburg). Although William J. Waterfill was involved in other distilleries, including at least one with the Ripy family, the “Waterfill & Frazier Distillery” was founded in 1870 by William Waterfill and R.H. Frazier in Anderson County, Kentucky, with each owning one-half of the distillery. In 1882, Waterfill sold his interest to Frazier, who continued the business.

But only three years later, R.H. Frazier wanted to sell, so William Waterfill bought back his one-half interest, and partnered with John Dowling (Mary’s husband) to operate the distillery, still known as “Waterfill & Frazier” and still selling “Waterfill & Frazier” bourbon.

R.H. Frazier died soon after and his son, George G. Frazier, perhaps being disappointed in not having inherited the distillery, decided to start his own distillery with James M. Waterfill, a cousin of William Waterfill. This new distillery was also in Anderson County, Kentucky, and this next generation of the Waterfills and Fraziers began distilling and barreling their own “Waterfill & Frazier” bourbon.

William Waterfill, of course, was still an owner of the original Waterfill & Frazier. He made clear to brokers that the upstarts could not use the “Waterfill & Frazier” brand, and he expressed his confidence that “any court of jurisdiction will protect us in the right of property in that brand.”

This brush-back pitch convinced young entrepreneurs to brand their barrels “J.M. Waterfill & Company, Distillers” and to change their advertisements to clarify that their distillery was owned by “G.G. Frazier” and “J.M. Waterfill.”

A few years later, for reasons not disclosed in the opinion, William Waterfill sold his interest to the Dowlings and he then partnered with the younger Waterfill and Frazier. So the original Waterfill & Frazier Distillery was now owned solely by the Dowlings, with no person named “Waterfill” or “Frazier” associated with the distillery.

In the meantime, the younger Waterfill and Frazier had been unable to sell their whiskey. But now with the help of William Waterfill, they finally found a broker in Chicago who agreed to buy all of their whiskey – so long as they would label it as “Waterfill & Frazier.”

When the Dowlings learned that the upstarts were going to use the “Waterfill & Frazier” trade name, they sued, seeking an injunction. The trial court granted the injunction, and the Fraziers and Waterfills appealed. The Court of Appeals of Kentucky agreed with the trial court, and ruled against the Fraziers and Waterfills, prohibiting them from using their own last names for their whiskey brand because they were trying to deceive the public.

This is one of the first cases that prohibited use of one’s own surname. It was followed about 50 years later in the Country Distillers case (Country Distillers v. Samuels – the rise of Maker’s Mark ) to prohibit T. William Samuels (Bill, Sr.) from calling his planned new bourbon “Samuels” or “Old Samuels.” Frazier v. Dowling laid the groundwork for an exception to the rule that people have the undeniable right to use their own name in their own business; they cannot use their own name if it would create market confusion.

Here, not only were the upstarts causing market confusion, but the Court was extremely critical of the new Waterfill & Frazier’s decision to change from a brand that recognized the distinction to one that clearly attempted to benefit from the existing Waterfill & Frazier brand. So the Dowlings were able to keep the “Waterfill & Frazier” name, Mary Dowling took it with her to Mexico, it survived well past Repeal, and although no longer in production, its name is still owned by Heaven Hill. Maybe in the midst of the American whiskey craze we’ll see Waterfill & Frazier again.

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