Dripping red wax

Last week the US Court of Appeal held that the signature red wax seal used on Maker’s Mark bourbon bottles (as shown left) is a valid trademark.

The Kentucky distillery sued Diageo Plc in 2003 (!). The claim was that the Jose Cuervo bottle of vodka consisted of a trademark infringement as the label of this bottle shows a red wax seal.

The response of Diageo was that the trademark claimed had “aesthetic functionality” and must be regarded as a functional (and therefore as a non-valid) trademark. A three-judge panel of the US Court of Appeal confirmed the opinion of a lower court that the trademark is enforceable. This was much to the relief of the Kentucky distillery as according to their statement “My grandmother dipped the first bottle of Maker’s Mark in red wax, and it’s been our signature trademark ever since”.

Besides the validity of the trademark and defending the trademark, no other consequences were at stake as the lower court already dismissed the claim of dilution.

Diageo is dissapointed but in fact, they were not using any dripping red wax seals since 2004, so it has not been a great loss.

Source: Bloomberg

Arnaud Bos

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