Law - BourbonSphere

Big Changes for Wyoming Whiskey

Wyoming Whiskey marked its 10th anniversary last December, and this April, Edrington took majority ownership of the Cowboy State’s first distillery. That ended the run… Read More

Wyoming Whiskey marked its 10th anniversary last December, and this April, Edrington took majority ownership of the Cowboy State’s first distillery. That ended the run of David DeFazio as Wyoming Whiskey’s president, but he remains the brand’s global ambassador and a part-owner of the distillery. We’ll talk with him about the changes since then, along with what the future holds, both for him and the brand. We’ll also catch up with Wyoming Whiskey’s first master distiller, Bourbon Hall of Famer Steve Nally and master blender Nancy Fraley on this week’s WhiskyCast In-Depth, too. In the news, the drinks industry is mourning the death of Diageo CEO Sir Ivan Menezes this week, while Brown-Forman has won a trademark lawsuit challenge at the U.S. Supreme Court.

Episode 1008: June 11, 2023

Big Changes for Wyoming Whiskey

Wyoming Whiskey marked its 10th anniversary last December, and this April, Edrington took majority ownership of the Cowboy State’s first distillery. That ended the run… Read More

Episode 1008: June 11, 2023

Big Changes for Wyoming Whiskey (Episode 1008: June 11, 2023)

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Sipp’n Corn Book Review – Lawyerly Libations

I found a new book to add your personal collection or holiday gift list—Lawyerly Libations, Concoctions for the Counselor, Apéritifs for the Attorney, Elixirs for the Esquire, and Additional Alcoholic Anecdotes: A Cocktail Compilation for the Burgeoning Barrister’s Bar, by Michael J. McCormick. While…

I found a new book to add your personal collection or holiday gift list—Lawyerly Libations, Concoctions for the Counselor, Apéritifs for the Attorney, Elixirs for the Esquire, and Additional Alcoholic Anecdotes: A Cocktail Compilation for the Burgeoning Barrister’s Bar, by Michael J. McCormick.

While the title is a mouthful, and maybe only funny to a lawyer, don’t be dissuaded. The title is a tongue-in-cheek prelude to McCormick’s witty style, through which he showcases cocktail history while diving into related (sometimes tenuously related) legal stories and even more historical context. Better yet, the legal stories often wryly mock the absurdity of lawyers and the law, just like the title.

Lawyerly Libations tells a different story in each of its 21 Chapters (a shout out to the 21^st Amendment) paired with 21 classic cocktail recipes. Chapter 7 has one of the best explanations of the Whiskey Rebellion with fun citations to Hamilton: An American Musical along with robust citations and footnotes for anyone interested in a more scholarly approach. Secretary of the Treasury Alexander Hamilton wanted to fund the nation’s debt by taxing domestic whiskey production—the infamous Whiskey Tax—which spawned rebellion in western Pennsylvania in 1791, and McCormick tells the rest of the story.

Plus, because using law as a resource wouldn’t be complete without raising a dispute, Lawyerly Libations tees up a fight for the first “American” cocktail. There’s a case to be made for the Old Fashioned, with its sheer simplicity and a recipe contained in the first U.S. cocktail recipe book in 1862. A better case is made for the Mint Julep, with its roots as a Persian tonic (گلاب / gulāb) and its arrival on our shores in the late 17^th Century, the innovation of Virginia colonists who made it with mint leaves, and then through the mid-1800’s when ice became more readily available and it became more recognizable to what it is today. And a seemingly weaker case can be made for the Sazerac®, but in typical legal fashion, it’s the Sazerac that secured trademark protection for “America’s First Cocktail®.”

Lawyerly Libations is an entertaining and fast-paced read that has been impeccably researched. Consider it for at-home bartenders, drinks enthusiasts, history buffs, and, of course, lawyers in your life.

Lawyerly Libations, Concoctions for the Counselor, Apéritifs for the Attorney, Elixirs for the Esquire, and Additional Alcoholic Anecdotes: A Cocktail Compilation for the Burgeoning Barrister’s Bar
Author: Michael J. McCormick
Published: July 9, 2022
Purchased on Amazon for $13.99.

Sipp’n Corn Bourbon Law Update – Bulleit forces a redesign for Redemption.

Ever since Old Crow and Old Taylor aggressively protected their trademarks in the 1800’s, setting the stage for current-day trademark law, bourbon brands have kept trademark attorneys busy. Diageo’s Bulleit brand and W.J. Deutsch & Sons’ Redemption brand have been locked in litigation for…

Ever since Old Crow and Old Taylor aggressively protected their trademarks in the 1800’s, setting the stage for current-day trademark law, bourbon brands have kept trademark attorneys busy.

Diageo’s Bulleit brand and W.J. Deutsch & Sons’ Redemption brand have been locked in litigation for years, but as of last week, the federal district court in the Southern District of New York entered a permanent injunction against Redemption. In sum, the court ordered Redemption to change its bottle and trade dress immediately.

In 2017, Bulleit sued Redemption, claiming that Redemption’s 2016 packaging redesign was “strikingly similar to that of Diageo’s Bulleit whiskey and copies the same vintage style and appearance,” and alleging that this infringed on Bulleit’s trademark and trade dress rights. Redemption responded with bluster, stating that Bulleit’s complaint “is devoid of any merit whatsoever” and asserted its own claims against Bulleit, even alleging that Bulleit had obtained its trademark fraudulently by making knowingly false statements to the Trademark Office.

Earlier this year, the parties went to trial in New York, with Redemption losing its counterclaims against Bulleit, but without Bulleit being awarded any damages. While Bulleit was not able to convince the jury on the issue of damages, the jury concluded that Bulleit’s trade dress is valid and protectable and that its packaging is famous, which paved the way for Bulleit to ask the court to enter an injunction.

That’s just what Bulleit did after the trial, and the court agreed that an injunction against Redemption was warranted. On September 7, 2022, the court recounted Bulleit’s use of its iconic bottle for 21 years, that it was nationally famous, and that Bulleit spent $56 million advertising in the five years before Redemption’s bottle redesign in 2016 (a year in which the court noted that Bulleit had $150 million in sales). It probably did not help that Redemption’s witnesses admitted that “consumers already know and love” Bulleit.

The jury’s conclusion that Bulleit’s trade dress was diluted by the Redemption packaging created a presumption that Bulleit was irreparably harmed, but Redemption still argued that Bulleit failed to prove a loss of any goodwill or erosion of its trade dress. The court disagreed, finding instead that Bulleit had provided “ample evidence show[ing] a loss of goodwill and the whittling away of the distinctiveness of Bulleit packaging to the detriment of its reputation and its ability to signify to the public that it is a unique product… .” When Redemption introduced its new packaging, Bulleit’s growth declined from the high 20’s, to 10 percent, and then single digits, while Redemption earned over $21 million in profits.

So, what does this mean for Redemption? First, although it might appeal, Redemption has been ordered to stop using its current packaging that looks like Bulleit’s. Whatever Redemption bottles had been sold by the brand as of September 7 can be sold to consumers, but there can be no new sales to distributors. Second, Redemption was ordered to redesign its packaging to “convey a substantially different commercial impression.”

While Bulleit’s victory was not nearly as convincing as Brown-Forman’s legendary triumph over Barton in the Woodford v. Ridgewood case, it continues a long line of authority that should keep new brands cautious and should act as a warning to marketers who push for brand redesign to capture the look and feel of popular brands. Originality is the safest way to avoid expensive lawsuits.

Sipp’n Corn Tasting Notes: W.H. McBrayer Kentucky Straight Bourbon.

This is a story that I love because it combines bourbon, history, and law. Sound familiar? Judge William Harrison McBrayer wrote a letter to E.H. Taylor, Jr. on November 10, 1870, concerning their discussions about Taylor purchasing some of the Judge’s whiskey. The back…

This is a story that I love because it combines bourbon, history, and law. Sound familiar?

Judge William Harrison McBrayer wrote a letter to E.H. Taylor, Jr. on November 10, 1870, concerning their discussions about Taylor purchasing some of the Judge’s whiskey. The back side of the letter contained the Judge’s mash bill, and now, about 150 years later, the Judge’s descendants used that very mash bill to revive the family legacy. But they used more than a recipe—they used local heirloom grains and 105 barrel-entry proof, harkening back to the bygone era.

Judge McBrayer’s distillery in Anderson County was wildly popular, with the value of his distillery and “Cedar Brook” easily making him a multi-millionaire in today’s dollars. McBrayer’s Ex’r v. McBrayer’s Ex’x, 16 Ky.L.Rptr. 18 (1894) tells the story of how the Judge’s legacy was almost extinguished after his death in 1888.

Before he died, Judge McBrayer had contracted with Levy & Bro. of Cincinnati to sell all of his existing barrels and all future distillery production through December 1, 1891. So, the distillery essentially had to be operated to fulfill the production contract. The Judge wrote in his will that the distillery could only be operated for three years after his death, at which such time he ordered that his name should be stricken from the business. He also wrote in his will that his wife should be given the most prominent role in deciding the affairs of his estate if the Executors were ever in disagreement.

The Judge’s only heirs were his widow and three grandchildren (children of his only daughter, who had died earlier), and the lawsuit set up a fight between grandmother and grandchildren. The Judge’s widow wanted to enforce the provision stripping the McBrayer name from the distillery and prohibiting her granddaughters from using the valuable Cedar Brook trademark, while the granddaughters wanted to continue to use the McBrayer and Cedar Brook names. The court engaged in linguistic gymnastics to rule that Judge McBrayer was so wise, and was such a savvy businessman, that what he really meant was that he did not want the distillery to be operated by the estate for more than three years, but it would be just fine for the granddaughters to form a new entity to operate the distillery, and of course the valuable McBrayer and Cedar Brook names should continue to be used. Essentially, the court held that the McBrayer and Cedar Brook names were just too valuable to let them go to waste.

W.H. McBrayer Tasting Notes

Bourbon:        W.H. McBrayer Kentucky Straight Bourbon Whiskey
Distillery:       Contract distilled at Wilderness Trail
Age:                Unstated, but four years and four months old
Mash Bill:      88.4% corn; 5.8% rye; 5.8% malted barley
ABV:              51.8% (103.6 proof)—Barrel Strength
Cost:               $100

Appearance:
Peach tea.

Nose:
Butterscotch galore and chocolate, with a slight alcohol sting.

Taste:
Butterscotch carries through on the flavor too, with honey and a buttery mouthfeel.

Finish:
Short-ish but flavorful finish that is predominantly sweet.

Bottom Line

Start with a story, follow the old ways, and then close with a great bourbon. Far too many brands make up stories just to hustle us with the same old sourced whiskey that we can all buy for half as much from the real brand. Here though, McBrayer did it right. My only surprise is that McBrayer didn’t produce a Bottled-in-Bond bourbon, at least for historical accuracy.

Be on the lookout for future McBrayer releases!

Disclaimer: The brand managers kindly
sent me a sample for this review,
without any strings attached.
Thank you.