Brian Haara
Bourbon. Law. Author.
Frazier v. Dowling – The Pre-Prohibition Fight Over Waterfill & Frazier.
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.
Bird Fight – Wild Turkey vs. Old Crow.
Bourbon distillers have proven themselves to be a competitive bunch, and taking advantage of another’s name recognition is probably as old as commercial distilling itself. Col. E. H. Taylor, Jr., George T. Stagg, James E. Pepper, Country Distillers, Maker’s Mark and countless others have all sued to protect their trade names or trademarks. A few years ago, Wild Turkey (at the time using the corporate name of “Rare Breed Distilling LLC”) had to sue Jim Beam, in a case called Rare Breed Distilling LLC v. Jim Beam Brands Co., in order to stop Beam from using the slogan “Give ‘em the Bird” for its bottom-shelf Old Crow brand.
Wild Turkey had used the registered mark “The Bird is the Word” since the 1970’s, and “The Bird” was commonly used to identify Wild Turkey bourbon. Wild Turkey claimed that the public had adopted “The Bird” as a nickname for Wild Turkey bourbon, which gave Wild Turkey trademark rights, just like Volkswagen has rights to “The Bug” even though the official name of its iconic car is “The Beetle.” Wild Turkey used a variety of slogans in the mid-2000’s, such as “The only time to give a biker the Bird,” “Give them the Bird,” “Give ‘em the Bird,” and “Shoot the Bird.”
Exhibit B to Wild Turkey’s Complaint (2006 promotion).
Exhibit D to Wild Turkey’s Complaint (2007 promotion).
Despite this established use – and despite Old Crow never having been previously referred to as “the Bird” – in March 2010 Beam applied to register the trademark “Give ‘em the Bird.” Beam also rolled out a new, edgy branding campaign for Old Crow using this slogan:
Exhibit G to Wild Turkey’s Complaint (2011 website home page).
Of course, “Old Crow” doesn’t have anything to do with a bird. Instead, its namesake is none other than Dr. James Crow, the Scottish immigrant who developed and perfected the sour mash method of distilling bourbon at the Old Oscar Pepper Distillery (now Labrot & Graham / Woodford Reserve). From the 1830’s through his death in 1855, the Old Oscar Pepper Distillery was renowned for Dr. Crow’s bourbon, which eventually became known as “Old Crow,” and which continued in production after 1855 by W. F. Mitchell (who had worked with and then succeeded Dr. Crow as distiller), and beyond.
While Old Crow enjoyed high praise in the past, it has since transitioned to the bottom shelf, and reportedly is not even the same recipe as used by Dr. Crow. Still, as the press release from Beam’s marketing firm explained, Beam wanted to showcase the rich heritage of Old Crow along with “a touch of outlaw spirit” in the “rough and tumble market for bourbon whiskey.” It’s unclear whether the marketing company knew that Wild Turkey had already been using the prized line.
Somehow, Wild Turkey missed Beam’s application to register the trademark and failed to object. In October 2010, after Wild Turkey finally learned about the planned campaign for Old Crow, it sent a demand letter that failed to get any action from Beam. In the meantime, Wild Turkey was launching a massive campaign based on the “Give ‘em the Bird” slogan, complete with Jimmy and Eddie Russell proudly extending their middle fingers for photo opportunities. As neither company backed off, in May 2011 Wild Turkey sued Beam in federal court in Louisville. Not to be outdone, Beam counter-sued in June 2011, asking the Court to immediately stop Wild Turkey from using its supposed trademark (which, coincidentally, was granted registration by the U.S. Patent and Trademark Office after Wild Turkey filed its lawsuit).
When the parties arrived at Court for an injunction hearing in July 2011, Beam did not have any evidence to present to support its request; just legal argument and a registered trademark. The parties argued their respective cases, with some arguments faring better than others (for example, Beam’s attorney argued that there is a “significant” difference between “Give Them the Bird” and “Give ‘em the Bird”; the Court didn’t buy that one).
Ultimately, because the Court wanted to hear evidence, the parties rescheduled another hearing in August 2011. Five days before the hearing, Wild Turkey filed an extensive brief supporting its position and also attached a survey which found that 24% of the participants recognized “The Bird” as a Wild Turkey name, whereas only 0.5% thought that it was associated with Old Crow.
Before the hearing was conducted, however, the parties agreed to dismiss all of their respective claims. This agreement was probably not so much either side conceding, but instead the result of a ruling by the Distilled Spirits Council of the United States (“DISCUS”) that the “Give ‘em the Bird” campaign violated the Code of Responsible Practices applicable to advertising because its implicit vulgarity did not “reflect generally accepted contemporary standards of good taste” and because advertising “should not contain any lewd or indecent images or language.”
So ultimately, DISCUS gave both Beam and Wild Turkey the bird, and the “Give ‘em the Bird” campaign was abandoned.
The Bulleit Experience – Bulleit Bourbon at Historic Stitzel-Weller.
When the Kentucky Distillers’ Association announced last January that one of its “major distillery events” at the inaugural Bourbon Affair included a tour of the Stitzel-Weller distillery in Louisville, I absolutely pounced on the opportunity.The Kentucky Bourbon Affair is a five-day celebration of bourbon, including not only behind-the-scenes distillery tours, but also events at the renowned 21C Museum Hotel, a Bourbon Ball at the Louisville club where the Old-Fashioned was invented, and many other activities, all to celebrate the 50th anniversary of Congress declaring bourbon to be “America’s only native spirit.” (Note for enthusiasts: That’s how the KDA describes it, but it’s not really what Congress stated in 1964. “America’s native spirit” might be the most misquoted line in all of bourbon.)
The Bourbon Affair promoted the Stitzel-Weller tour as “The Bulleit Experience”:
Open to the public for the first time ever, join Bulleit Bourbon Founder Tom Bulleit for an exclusive tour of the Bulleit Experience at the historic Stitzel-Weller Distillery in Louisville. Walk the hallowed grounds of this private facility while learning the history of Bulleit Bourbon straight from its founder. Sample famous Bulleit brands, enjoy Bourbon and rye-inspired appetizers and desserts, and leave with your own unique Bulleit rocks glass. This is an incredible opportunity to tour a historic distillery that’s never been opened to the general public.
Other Bourbon Affair events had incredible bonus gifts for guests. Heaven Hill reportedly handed out $250 bottles of Heaven Hill Select Stock; Wild Turkey let participants shoot skeet with Jimmy and Eddie Russell; and Four Roses gave away a copper whisky thief to each participant at a private barrel selection. We received a rocks glass and a julep cup. While that lacks the “bang” of shooting skeet, it’s fine, because I was there to experience Stitzel-Weller itself.
Stitzel-Weller, of course, is holy ground for bourbon enthusiasts. A. Ph. Stitzel formed The Stitzel Distilling Company in Louisville in 1911. He leased his original distillery to W.L. Weller & Sons, thus beginning their long relationship. Stitzel stored whiskey produced by others during National Prohibition, and in 1920, received a license to make “medicinal whiskey.” In 1933, after Repeal, the Stitzels and Wellers formally join together to create Stitzel-Weller Distillery, and moved from downtown Louisville to the then-outskirts of town, in an area known as Shively. In 1934 they started building the distillery that is so famous today, and they opened on Derby Day in 1935.
Stitzel-Weller produced the W. L. Weller line of bourbon (which has found new success and tremendous expansion in recent years as a Buffalo Trace brand), Rebel Yell, Cabin Still, Mammoth Cave and others. Its top-of-the-line bourbon and the brand most associated with Stitzel-Weller – until the Pappy craze – was the Old Fitzgerald line. Julian “Pappy” Van Winkle was integral to the growth, character and spirit of Stitzel-Weller. After Pappy’s death, his son, Julian Van Winkle, Jr., took over. However, he had to sell in 1972, and after subsequent corporate acquisitions and mergers, Stitzel-Weller ceased distilling operations in 1992, sold its brands to various other distillers, but continued to warehouse barrels of quietly-aging bourbon. The Van Winkle family was able to acquire rights to many of those barrels, as did other Non-Distiller Producers, so Stitzel-Weller bourbon has gained fame not just as Van Winkle brands, but also as Jefferson’s Presidential and other rare offerings.
Today, Diageo owns Stitzel-Weller, and houses its offices for Bulleit there. The Bulleit you can buy today was not distilled there, however. Bulleit fans who want to see where their favorite bourbon is made have to go to Four Roses, or for their favorite rye, to MGP in Indiana, assuming they’re in on two of the worst-kept secrets among non-distiller producers. Diageo and Bulleit recently announced, with much fanfare, that Diageo is investing $2 million on renovations at Stitzel-Weller, “to bring to life the history of the Stitzel-Weller Distillery through artifacts from the site’s archives; a whiskey education section; a homage to the people, land and water of Kentucky; and a celebration of the heritage, brands and people behind Diageo’s award-winning collection of American whiskeys.” (Feb. 19, 2014 Press release) Oh, and a gift shop too… but no current plans to distill again.
Diageo’s efforts are evident. New fences, sidewalks, landscaping and windows, along with an incredible renovation of the Jeffersonian administrative offices – now complete with museum-type rooms, an archival collection room and tasting room – are all in place.That’s a great sign of things to come, but I was fascinated by our chance to see what Stitzel-Weller looked like in 1992 and earlier. Many of the other buildings have been untouched since 1992. The barrel-filling room, for example, still contained distillate in the lines, giving more of sense of sudden abandonment than mere closure. Diageo has since flushed the lines, and we got to smell the white dog from 1992. The filling room looked like it had 20 years-worth of dust on the floor, it still had chalkboard notes written in 1992, and other than having barrels placed for show, the room was just as it was on the day that Stitzel-Weller closed.
The on-site Cooper Shop looked like it had been untouched for even longer. In fact, this 1930’s-era building did not appear to have received any updates during its working life, so it was a pure experience of looking into the past. No other distillery tour can give such an authentic, non-sanitized experience of history.
Other areas on the grounds appeared downright neglected. It wasn’t anywhere near as apocalyptic as places like the James Pepper distillery in Lexington, but there certainly had been some physical plant neglect. Concern for safety was the reason we were not allowed into the still room, or to see the mash tubs, or to see any of the inner-workings of the distillery, which was a big letdown.
Tom Bulleit hosted us at the beginning and at the end for a tasting of Bulleit, Bulleit 10 and Bulleit Rye. He was gregarious, entertaining, funny, and a gracious host; I was glad to have the chance to meet him. Andrea Wilson, Director of Whiskey Supply Strategy for Diageo, accompanied us throughout the tour, and I asked her all kinds of questions about sourcing, the post-Four Roses world, what’s actually being aged at Stitzel-Weller, where Barterhouse and Old Blowhard were distilled and aged (and, it turns out, moved), mash bill percentages, years aged, future plans for any distillation at Stitzel-Weller, and other plans for the distillery. I didn’t get many answers, although I got a few.
Overall it was a great afternoon at a historic distillery. I’m keeping faith that Diageo will honor the heritage that it inherited with Stitzel-Weller, including Pappy’s gentlemanly code:
We will sell fine Bourbon
At a profit if we can
At a loss if we must
But always fine Bourbon.
I’m also hoping for more transparency and a return to distillation at Stitzel-Weller, but all the same, I’m enjoying Bulleit bourbon.
Sipp’n Corn Bourbon Review – Willett Family Estate Single Barrel 8 & 9 Year (Liquor Barn Private Barrels)
*Updated on September 16, 2014 after adding the review for the 9-year expression.
Thirteen months ago, Liquor Barn selected three barrels at The Willett Distillery, and last week they finally hit the shelves. The length of time from selection to bottling in Willett’s private barrel program has been the subject of other blogs, so for my purposes, let’s just see if it was worth the wait.
The three barrels include an 8-year 119.6 proof (gold wax), 9-year 119.6 proof (blue wax), and 9-year 121.8 proof (burgundy wax). Having three different wax seals is a nice touch, but I was disappointed to see that Willett moved away from handwritten labels. While using the exact same label from previous Family Estate bottlings, this time the age, barrel number, ABV and proof are computer-printed. Sometimes the printer was not exactly lined up with the blanks and the toner looked like it could have used replacing. Whoever made this presumably time-saving call at Willett might re-think appearances and attention to detail.
As with all current offerings from Willett (whether hard-to-find Family Estate bottles, the ubiquitous Pot Still Reserve variety, or any of the numerous brands bottled by Willett), Willett did not distill this bourbon. Still, Willett knows how to select and age barrels, as they’ve proven time and time again.
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Bourbon:
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Willett Family Estate Single Barrel
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Willett Family Estate Single Barrel
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(Barrel No. 106)
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(Barrel No. 196)
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Age:
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8 years
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9 years
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Proof:
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119.6 proof
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119.6 proof
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Cost:
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$74.99
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$84.99
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Distillery:
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Not disclosed, but bottled at The Willett Distillery, in Bardstown, Kentucky, which is an assumed name adopted by Kentucky Bourbon Distillers, Ltd in 2005. The Willett Distilling Company was originally incorporated in September 1936.
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Tasting Notes
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Willett Family Estate 8-year
Color: Bright brown. The light plays really well with this one.
Nose: Cracked corn and straw, some corn sweetness, subtle spice, a bit of clove and a little smoky. The nose is very pleasant. While ethanol is certainly noticeable, the nose masks true ABV. After some aeration, the only difference is the addition of slight cocoa notes.
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Willett Family Estate 9-year
Color: A very similar bright amber-brown.
Nose: Definitely a sweeter nose than the 8-year. It’s heavy on the caramel and toffee, and combines that candy sweetness with roasted nuts, toast and oak. A little air also helps soften the ABV on the nose.
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Taste: Nice bite revealing that it’s a higher-proof bourbon, but still masking that it’s nearly 60% ABV (I would have guessed about 100 proof). It has a great balance of brown sugar with grains and oak, pepper spice, and some slight bitterness of espresso; really fantastic flavors for an overall dry taste. After trying this neat, you’ll need a splash of water or ice, which regulates the heat and brings out a little more sweetness. A few ice cubes is probably my favorite way to drink this one.
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Taste: Consistent with the nose, the taste starts with candy bar sweetness, but it has incredible balance with a smokiness that wasn’t present in the nose, along with black pepper and oak. As with the 8-year (and as with most – but not all – barrel proof Bourbon) after trying this neat, try it with a single large ice cube and a splash of water. You may be surprised at how new flavors open up. However, this 9-year was better neat than the 8-year.
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Finish: The finish was medium in length with great warmth, and overall somewhat subtle in its flavors.
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Finish: The finish may have been a little shorter than the 8-year, but maybe it just seemed that way because of its sweetness.
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Bottom Line
These Bourbons are fantastic, with great, classic dry profile, and no downside on the taste. Finding a Family Estate bottle is going to be a little difficult, but keep looking. And if you know that your favorite store selected a barrel some time ago, be patient; it’s sure to be worth the wait. Of course, because this is a private selection single barrel, Family Estate bottles that you find anywhere other than Barrel No. 106 bottled for Liquor Barn will be different, but I’ve never gone wrong with Willett private selection.
Of course, the price is steep for anyone except diehard bourbon fans or those looking for a special bottle as a gift. These particular private barrels are great but they aren’t magic, so if you’re new to bourbon, I’d spend your $75 or $85 on one bottle each of Weller 12 ($24.99 last purchase), Elmer T. Lee ($28.99 last purchase) and Four Roses Yellow Label ($19.99 last purchase). Those three combined will cost roughly the same amount, and you’ll increase my chances of finding another bottle of Willett Family Estate.
Score on The Sipp’n Corn Scale:
Willett Family Estate 8-year: 4.0
Willett Family Estate 9-year: 4.0
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.
Sipp’n Corn Bourbon Review – Parker’s Heritage Collection (7th Edition) “Promise of Hope”
After my last review of a sub-$10.00 Very Old Barton 6-year bourbon, I had to go to the other extreme for a limited-release bourbon higher than top shelves. In 2013 Parker Beam and Heaven Hill released their seventh expression of Parker’s Heritage, this time a 10-year single barrel bourbon from Rickhouse EE, said to be Parker’s favorite. This 2013 edition includes a donation by Heaven Hill of $20.00 to the ALS Association for every bottle (with projections of $250,000 in total donations), in honor of Parker’s diagnosis with ALS. Plus, I had to review the seventh edition before the eight edition is released…
Bourbon: Parker’s Heritage Collection 7th Edition, Promise of Hope Single Barrel
Distillery: Heaven Hill
Age: 10 years
Proof: 96 proof
Cost: Expect to spend between $80.00 and $129.00 (I paid $129.99 at the Evan Williams Bourbon Experience, which charges more for everything)
Tasting Notes
Color:
More of a bright copper than amber.
Nose:
There was more going on with this nose than I expected. It had a balance of caramel, vanilla, basil, oak and some slight earthy notes; overall this is a fantastic nose.
Taste:
The taste starts with just a little caramel and pear sweetness, and moves to classic rye spice with more warmth than the proof might indicate, even with some bite on some sips. It feels a little thin compared to other high-shelf offerings, but it has absolutely great flavors. Don’t water this down; it’s a great bourbon to sip neat. On the other hand, the chill of a little ice tamed the dryness, and I think I’ll ice this down for my summer bourbon.
Finish:
The finish continues with similar flavors and a little more oak for an overall dry finish, and maybe a hint of mint, for a medium-length, warm finish.
Bottom Line
In addition to the VOB line, I’ve reviewed some other “value” bourbons lately. They’ve all had their qualities, but now I’m reminded of what bourbon can be. It’s rare to have a bourbon with balance like this seventh edition of Parker’s Heritage, and my pendulum is swinging back to thinking that I’m better off spending more and drinking better bourbon. Promise of Hope doesn’t rely on novelties, and since Heaven Hill bottled this one as single barrels, there’s no hiding or supplementing the characteristics of this bourbon. It’s a classic bourbon with refined balance. While Promise of Hope is undoubtedly priced too high (there are better bourbons for the price, and in a few of cases better bourbon for about 1/2 – 2/3 the price I paid, and that lowers the score on my scale), Promise of Hope is still a must-have for your collection.
Score on The Sipp’n Corn Scale: 4.0
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.
Brian Haara 