Brian Haara
Bourbon. Law. Author.
Country Distillers v. Samuels – the rise of Maker’s Mark.
Maker’s Mark declared September 14, 2013 “Ambassador Day.” The Ambassador program, of course, is the ingenious rewards/loyalty program of Maker’s Mark. (Disclaimer: I’ve been an Ambassador since 2005.) Was September 14 just a date picked out of thin air, or did it have some significance?
Knowing Maker’s Mark, I figured that it meant something, so I did a little investigating, and I found a perfect topic for my “bourbon as told through the rich history of American lawsuits…” bit.
Maker’s Mark touts its history with its trademark “SIV” to honor four generations of distillers in the Samuels family (or is it six? http://www.makersmark.com/sections/75-whoops). Everyone also knows about the unique dripping red wax seal, and many people are aware of the relatively recent litigation against a tequila brand that infringed on that trademark. But long before there were any disputes about wax seals, Bill Samuels, Sr. was embroiled in litigation when he broke from former corporate ownership and sought to make a new beginning in the 1940’s.
Country Distillers Products, Inc. v. Samuels, Inc., 217 S.W.2d 216 (Ky. 1948) tells the background story of what became the current-day Maker’s Mark. The Court began by noting that the Samuels family had been making whiskey for over one-hundred years at the time of this lawsuit, but had not incorporated their distillery until 1933, when they formed T. W. Samuels Distillery (named after the original Samuels distiller) with other corporate investors. The name was changed to Country Distillers Products, Inc. in January 1942, and the distillery continued to produce the “T.W. Samuels” and “Old Jordan” brands.
About 1½ years after the official name change, on July 30, 1943, T. William Samuels (a/k/a, Bill, Sr., the great-grandson of T. W. Samuels) resigned and sold all of his shares. But Bill, Sr. apparently didn’t plan on retiring; he wanted to make a better bourbon. A mere six weeks later – on September 14, 1943 – he incorporated Old Samuels Distillery, Inc. and T. W. Samuels, Inc. This is where Maker’s Mark was eventually born, and that explains why Maker’s Mark picked the 70th anniversary as its “Ambassador Day.”
Bill, Sr. still had a fight on his hands, though. Country Distillers sued Old Samuels Distillery, Inc. and T. W. Samuels, Inc. to prevent them from using the Samuels name. The trial court sided with Country Distillers and ruled that while Bill, Sr. could use the name “T. W. Samuels, Inc.” as a company name, the Samuels name could not be emphasized on labels, nor could he use “Samuels” or “Old Samuels” as brand names, and that he also had to include the phrase “not connected with Country Distillers, Inc.” on each label.
In a 1948 decision, the Court of Appeals of Kentucky (at the time, the highest court in the Commonwealth) mostly agreed with the lower court. While the court recognized that so long as a person does not create confusion in the market, he always has the “undeniable right” to use his own name in his own business, in this case the name “T. W. Samuels” did create confusion. So the court affirmed the restriction on the font size of using the corporate names on labels and against using “T. W. Samuels” as a brand name, and the disclaimer that it was “not connected with Country Distillers.” On the other hand, Country Distillers had never used the name “Old Samuels,” so Bill, Sr. was permitted to use that brand name.
In any event, during these years Bill, Sr. was still perfecting his new recipe that used wheat instead of rye as the secondary grain. As legend has it, he even ceremonially burned the old Samuels recipe. And it wasn’t until 1953 that Bill, Sr. bought the distillery in Loretto, Kentucky, then known as Star Hill Farm (and formerly known as the Burks Mill & Distillery, where distilling started in 1805), so that he could start distilling and aging. So Bill, Sr. had some time, but the Country Distillers lawsuit might explain why his wife came up with a new name we now all know and love. (http://www.makersmark.com/sections/70-behind-every-good-man). Whatever the reason for Bill, Sr.’s split from Country Distillers, we should all be thankful that he struck out on his own and that he persevered despite the lawsuit.
Sipp’n Corn Bourbon Review – W.L. Weller 12 Year Old
Bourbon: W.L. Weller 12 Year Old
Distillery: Buffalo Trace, Frankfort, Kentucky
Age: 12-Year Age Statement
Proof: 90 proof
Cost: $25.99
Tasting Notes
Color:
Deep bronze.
Nose:
The nose of Weller 12 is unmistakably sweet with caramel and butterscotch notes. Do I smell cereal because I know it’s a wheated bourbon or because it’s really there? It’s hard to tell. But the nose is definitely smooth and subtle.
Taste:
The sweetness of the nose continues on the palate with flavors of caramel, butterscotch and vanilla, but with excellent balance and depth of wheat, oak and almond, which prevents it from tasting syrupy. This is very rich and smooth bourbon with great warmth. It didn’t open up much with a drop of water, so I prefer my Weller 12 neat or with minimal ice.
Finish:
Medium-to-long finish, but maybe medium when compared to more complex bourbons. The finish was warm and smooth with honey-wheat grain flavors.
Bottom Line
The Weller brand touts itself as the original wheated bourbon, using wheat instead of rye as its secondary grain. This bourbon is named after William Larue Weller (1825-1899) and in its heyday, it was part of the famed Stitzel-Weller Distilling Company. It’s now owned by Sazerac and produced at Buffalo Trace in Frankfort, Kentucky.
Using wheat as the secondary grain gives it a different profile than bourbons that use the more traditional rye mash bill. Wheat also tends to give the bourbon a much smoother taste. Other examples of terrific wheated bourbons include Maker’s Mark and the Pappy Van Winkle line, which, as most people know by now, is made from the same mash bill as Weller (Buffalo Trace distills both brands from the same mash bill with no distinction on the front end for what brand will ultimately be used). Instead of hunting down Pappy and paying a small fortune, I’m happy with Weller 12.
Weller 12 could be the price-performer of all bourbons, and it’s definitely better than many bourbons twice its price. What it lacks in complexity, it more than makes up for in its balance and drinkability. I highly recommend Weller 12.
Score on The Sipp’n Corn Scale: 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.
One hundred years ago, secret sourcing was considered fraud.
The recent proliferation of new bourbon brands has included many brands distilled and aged by existing distilleries but sold under new, often “historic,” names. Of course, a new brand seeking to capitalize on the bourgeoning bourbon market wouldn’t have time to create a recipe and age for the minimum years, let alone the ten to twenty-plus years of these super-premium brands. That reality makes “sourcing” bourbon common today, and it gives bourbon enthusiasts a chance to play detective where the new brands aren’t upfront. (Many are upfront about it.)
Diageo’s Bulleit Bourbon is one of my favorites, but it’s also one of the better-known current-day examples of undisclosed sourcing. Bulleit claims to be a product of the “Bulleit Distilling Company, Lawrenceburg, Kentucky.” It’s widely accepted that Bulleit is really made by Four Roses in Lawrenceburg, but last month my Four Roses tour guide insisted that Four Roses can’t possibly make all of the Bulleit, so at least there’s some mystery.
It turns out that sourcing bourbon is not a new practice, however. Litigation between an Ohio wholesaler and the H.E. Pogue Distillery in the early 1900’s provides an example of an early sourcing contract. The court in H.E. Pogue Distillery Co. v. Paxton Bros. Co., 209 F. 108 (E.D. Ky. 1913) was faced with claims by Pogue that Paxton Bros. had breached its contract to purchase a large quantity of Pogue bourbon.
Paxton Bros. was a Cincinnati-based spirits wholesaler. By the late 1800’s, Paxton Bros. had found success with its Edgewood Whiskey blend, and there was wide recognition of its trademark rotund, tuxedo-and-fez-wearing man, known simply as the “Edgewood Man.”
Pogue, of course, is one of the more significant historical names in Kentucky bourbon. After suspensions in operations during prohibition and changes in ownership and closure after World War II, the Pogue family is back in business again. http://www.oldpogue.com/history/#. Located in Maysville, Kentucky, near the legendary site where many say bourbon was born (the old Bourbon County), the Pogue distillery was one of the top bourbon distilleries in the late 1800’s and early 1900’s.
The Wine and Spirit Bulletin reported in its April 1, 1906 edition that Pogue had sued Paxton Bros. for $30,000 because the alleged breach of contract by Paxton. The U.S. District Court’s 1913 opinion (by Judge Andrew McConnell January Cochran, who like the Pogues, was a Maysville native) recites that Paxton Bros. contracted to purchase 12,500 barrels of bourbon from Pogue, which Pogue was to distill and then age in its warehouse.
But these 12,500 barrels were to be labeled not with the Pogue name, but instead as having been distilled by Paxton Bros. or possibly under its Edgewood trade name. The parties tried to find a way under their contract for bottling the bourbon under the Paxton or Edgewood name, which certainly would have been difficult given the tight government regulations of the time. In fact, federal law at the time would not have allowed the distillery to be operated as the H.E. Pogue Distillery and, at the same time, stamp and label the bottles showing another’s name. Recognizing this dilemma, Pogue and Paxton apparently agreed that even though Pogue was in fact going to produce the bourbon and sell it to Paxton, the Pogue distillery would be leased to its namesake, H.E. Pogue, who would operate it as “H.E. Pogue as the Paxton Bros. Company.”
This maneuver, they believed, would allow the bourbon to be labeled as having been distilled by Paxton. Judge Cochran found this arrangement to be “the perpetuation of fraud on the public” by representing that Paxton “had made the whisky, which in fact [Pogue] had made.” Because of this “fraudulent” purpose, the court held that the contract was void and it dismissed Pogue’s claims.
So the fat man in the fez got out of his contract to buy Pogue’s bourbon, but H.E. Pogue would be happy to see that his family is still making bourbon, while Edgewood is barely remembered in history. Even so, it’s too bad that, 100 years later, in some cases there is less transparency among some brands who try to hide their sourcing.
James E. Pepper – fact or fiction?
My last post, about “How Woodford Reserve got to keep the (old) name of its distillery,” followed the 1880-81 litigation between James Pepper and Labrot & Graham over the name of the “Labrot & Graham’s Old Oscar Pepper Distillery.” James Pepper was the grandson of Elijah Pepper, who in 1812 became the first distiller on Glen’s Creek where Woodford Reserve is now located, and he wanted to stop Labrot & Graham from using the “Pepper” name.
After James Pepper’s bankruptcy in 1877 and loss of the family distillery described in the court’s ruling, his financial fortunes seemed to have reversed. The current owners of the Pepper brand, Georgetown Trading Co., describe James Pepper as a “larger-than-life bourbon aristocrat[, who] raced thoroughbreds, traveled in a private rail car, and introduced the world to the ‘Old-Fashioned’ cocktail.” They add that he lived for extended periods of time at the Waldorf Astoria Hotel and “socialized with other American captains of industry, including John D. Rockefeller, Theodore Roosevelt, C.V. Vanderbilt, Charles A. Pillsbury, Fred Pabst, Charles Tiffany, and William Steinway.” I wonder if those captains of industry knew about the bankruptcy?
Bankruptcy is not mentioned in Georgetown Trading Co.’s historical review (http://www.jamesepepper.com/history.php), which simply characterizes the loss of the family distillery as involving a sale by James Pepper so he could move to Lexington to build “the largest bourbon distillery in the U.S.”
While the facts recounted in Pepper v. Labrot [& Graham], 8 F. 29 (C.C.D. Ky. 1881) seem to contradict this current-day spin on how the Pepper family lost its distillery, the case might also prove that James Pepper made some exaggerations too. The marketers at Georgetown Trading Co. posted this August 22, 1887 “‘top secret’ letter … from James E. Pepper himself,” which claims that “Old Pepper Whisky” is made in the same way and with the same formula used for more than 100 years by three generations of the Pepper family:
The facts recounted in Pepper v. Labrot [& Graham] seem to contradict this 100-year claim too. Indeed, the Court quoted one of James Pepper’s pre-bankruptcy (presumably sometime between 1874 and 1877) advertisements where he gave credit to James Crow, who we all know did not revolutionize bourbon distilling until the 1830’s (which was different from how Elijah Pepper would have made his bourbon). James Pepper’s advertisement does not mention his grandfather or any family bourbon enterprise dating back to the 1700’s:
Having put in the most thorough running order the old distillery premises of my father, the late Oscar Pepper, (now owned by me,) I offer to the first-class trade of this country a hand-made, sour-mash, pure copper whisky of perfect excellence. The celebrity attained by the whisky made by my father was ascribable to the excellent water used, (a very superior spring,) and the grain grown on the farm adjoining by himself, and to the process observed by James Crow, after his death by William F. Mitchell, his distillers. I am now running the distillery with the same distiller, the same water, the same formulas, and grain grown upon the same farm.
But my favorite part of the 1887 “top secret” letter is its conclusion, which sounds like a dig at Labrot & Graham, and which probably reflects Pepper’s dissatisfaction with the court’s 1882 ruling that Labrot & Graham could continue to use the name “Old Oscar Pepper Distillery”: “Our Mr. Jas. E. Pepper is the only one of his name who has been engaged in the Distilling business in Kentucky for over twenty years, and therefore any whisky offered to the trade as a genuine ‘Pepper’whisky is fraudulent unless distilled by us.”
This is part of what I love about bourbon – every brand has myths, legends and stories to tell, and they’ve been telling those stories for over 200 years.
How Woodford Reserve got to keep the (old) name of its distillery.
The “Labrot & Graham Distillery” is what Brown-Forman called its distillery in Woodford County, Kentucky, when it began producing its popular Woodford Reserve bourbon, although it has since renamed the distillery the “Woodford Reserve Distillery.” But this relatively quiet name-change 10 years ago stands in stark contrast to naming disputes at the distillery midway through its 200-year history.
Perhaps the most important naming-rights issue involved a contentious lawsuit filed in October 1880 by the grandson of the original owner of the original distillery on the Woodford Reserve property against a partnership between French wine producer Leopold Labrot and Kentucky businessman, James H. Graham. The ruling from this litigation – issued by a United States Supreme Court Justice – provides an invaluable outline of some of the earliest distilling operations in Kentucky and the perfection of the bourbon distilling process by James Crow.
According to Brown-Forman’s National Historic Landmark Nomination for the “Labrot & Graham’s Old Oscar Pepper Distillery,” it described the property as a “bourbon whiskey manufacturing complex in Woodford County, Kentucky, standing on a site that has been used for the conversion of grain into alcohol since 1812, when Elijah Pepper, a farmer-distiller, established his 350 acre farm.” The case of Pepper v. Labrot [& Graham], 8 F. 29 (C.C.D. Ky. 1881) traces those early days of the property now known as Woodford Reserve.
Elijah Pepper, a Virginian who moved to Kentucky around 1797, established his first distillery behind the Woodford County Courthouse in Versailles around 1810. By 1812, however, Elijah Pepper had acquired hundreds of acres along Glenn’s Creek, where he built his homestead, a grist mill and distillery, and where he established his family farm. This appears to have been the first distillery on the Woodford Reserve property.
Elijah Pepper died in early 1831 and the distillery was operated by his son, Oscar N. Pepper. Sometime after Oscar completed a new limestone distillery building in 1838, the distillery became known as the “Old Oscar Pepper Distillery.” By 1833, and through 1855 (except for two years), Oscar Pepper employed the venerable James Crow as his distiller, and the distillery was renowned for its bourbon and for refining and defining what we know as bourbon today.
James Crow died in April 1856, but because of the fame gained by the Crow brand, “Old Crow” bourbon continued to be produced at the Old Oscar Pepper distillery by W. F. Mitchell, who had worked with and then succeeded James Crow as distiller.
Oscar Pepper died in June 1865, and it appears that the property containing the distillery was transferred by the Estate to Oscar’s youngest of seven children, O’Bannon Pepper. O’Bannon was still a minor, which meant that Oscar’s wife, Nannie, controlled the distillery. She leased the distillery property in 1870 to Gaines, Berry & Co. of Frankfort (the “& Co.” was none other than Col. Edmond H. Taylor, Jr.), although James E. Pepper – Oscar’s eldest son – may have managed the distillery. Gaines, Berry & Co. produced “Old Crow Whiskey,” they called the distillery the “Old Crow Distillery,” and they continued to employ W. F. Mitchell as their distiller.
James Pepper sued his mother in 1872 to gain control of the distillery property, but that is another story for another blog. James succeeded in taking control of the distillery and then partnered with Col. Taylor, who had separated from Gaines, Berry & Co., to make improvements to the distillery and continue operations. In 1874 however, Gaines, Berry & Co. appear to have transferred the “Old Crow” trademark to another of their distillery operations, leaving James Pepper’s brand as “Old Oscar Pepper,” also known as “O.O.P.” bourbon.
James experienced financial hardships, and was declared bankrupt in 1877. Through the bankruptcy, Col. Taylor appears to have taken sole ownership of the Old Oscar Pepper Distillery. But Col. Taylor – who also owned other distilleries – experienced his own financial ruin shortly thereafter. This led to the transfer of the Old Oscar Pepper Distillery to George T. Stagg, and finally to Labrot & Graham in 1878.
After his financial fortunes seemed to have reversed (another story for future blogs), James Pepper built a new distillery on Old Frankfort Pike in Lexington, Kentucky. There, he hoped to continue to trade on his father’s name and the tremendous reputation achieved by his father and James Crow.
Now with his new financial footing, James Pepper took aim at Labrot & Graham, who continued to call his father’s distillery the Old Oscar Pepper Distillery. James believed that only he should be able to use the “Pepper” name, and in 1880 he filed a lawsuit in federal court to gain back part of what he lost in bankruptcy.
Incidentally, this federal lawsuit between James Pepper and Labrot & Graham was so early in American judicial history that the United States Supreme Court Justices were still responsible for “circuits” throughout the country. So the judge who presided over the litigation was Justice Thomas Stanley Matthews, who served on the United States Supreme Court from May 12, 1881 to his death in 1889. Justice Matthews was a Cincinnati native who was first nominated to the Court by his former tent-mate, President (then-Colonel) Rutherford B. Hays, while Matthews served as a Lieutenant Colonel with the 23rd Ohio Infantry of the Union Army. The Senate did not confirm Justice Matthews until President James A. Garfield re-nominated him, and even then Matthews was only confirmed by a vote of 24 to 23.
After reciting the history of the property and the claims and counter-claims being asserted, Justice Matthews noted and relied upon an advertisement used by James Pepper from the period when he owned the Old Oscar Pepper Distillery. James touted his bourbon as follows:
Having put the most thorough running order the old distillery premises of my father, the late Oscar Pepper (now owned by me), I offer to the first-class trade of this country a hand-made, sour-mash, pure copper whisky of perfect excellence. The celebrity attained by the whisky made by my father was ascribable to the excellent water used (a very superior spring), and the grain grown on the farm adjoining by himself, and to the process observed by James Crow, after his death by William F. Mitchell, his distillers. I am now running the distillery with the same distiller, the same water, the same formulas, and grain grown upon the same farm.
Despite Oscar Pepper’s much earlier ownership of the distillery, James Pepper alleged that “Old Oscar Pepper” had not been used until 1874. He alleged that the following brand that he burned on barrel heads was his trademark:
As might be expected, evidence was presented to the court proving that between 1838 and 1865, while Oscar Pepper operated the distillery, it was already commonly known as the “Oscar Pepper Distillery.” Additionally, because of the fame of James Crow and his bourbon – known as “Old Crow” – the distillery was also known as the “Old Crow Distillery”, a name that continued in use after James Crow died in 1856 and after Oscar Pepper died in 1865. Even Gains, Berry & Co. marketed themselves as “Lessees of Oscar Pepper’s ‘Old Crow’ Distillery.”
After James Pepper lost the property, and after the eventual acquisition by Labrot & Graham, Labrot & Graham used a similar trademark, and specifically used the name “Old Oscar Pepper Distillery.”
Labrot & Graham responded to the James Pepper lawsuit by explaining that they were using the name “Old Oscar Pepper Distillery” properly because the distillery they now owned was called the “Old Oscar Pepper Distillery.” The court posed two questions: (1) should Labrot & Graham be forced to change the name of a distillery that they purchased and denied the right to call the distillery by its name, and, conversely, (2) should James Pepper be allowed to continue to use the name of his father’s former distillery, when his new bourbon was not distilled there?
As might be expected by the way the court presented these questions, Labrot & Graham won the case. Justice Matthews ruled that reference to “Old Oscar Pepper Distillery” meant the place of production, and was not a trademark. Moreover, James Pepper could not truthfully use the phrase since he no longer owned the Old Oscar Pepper Distillery.
Without this ruling from Justice Matthews 132 years ago, the now-faded names etched in limestone at Woodford Reserve – “Old Oscar Pepper Distillery Est. 1838, Labrot & Graham Est. 1878” – might be missing part of history.
Brian Haara 