There’s a lot of data behind the whiskies we enjoy, and analyzing that data can give us some insights into the health of the whisky… Read More
There’s a lot of data behind the whiskies we enjoy, and analyzing that data can give us some insights into the health of the whisky industry. Martin Purvis and Duncan McFadzean examine whisky data for their Commercial Spirits Intelligence newsletter, and concluded that last week’s Scotch Whisky export numbers aren’t as bad as they might appear on face value. We’ll talk with Martin Purvis about the analysis on this week’s WhiskyCast In-Depth. In the news, we have details on this year’s crop of annual releases from Four Roses, Heaven Hill, and Old Forester, along with the rest of the week’s new releases. We’ll also have our Community segment and explain in Behind the Label why you can’t get a Kentucky Bourbon Trail passport stamped at one of the Commonwealth’s most popular distilleries.
Thousands of illicit distilling sites exist around Scotland. Derek Alexander and his team of archaeologists at the National Trust for Scotland have barely scratched the… Read More
Thousands of illicit distilling sites exist around Scotland. Derek Alexander and his team of archaeologists at the National Trust for Scotland have barely scratched the surface of the country’s bothys, but their recent digs have uncovered some rare artifacts of illicit distilling’s past. We’ll catch up with Derek on this week’s WhiskyCast In-Depth. In the news, The Balvenie’s longtime Malt Master, David Stewart, is standing down after 47 years in the post. The UK, Australia, and New Zealand all raised liquor taxes this week, and Suntory is celebrating its 100th anniversary with a “tiny house” tour of America.
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.
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.
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 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.
At one time, Campbeltown was Scotland’s whisky capital with more than 35 distilleries. That number dwindled to just three over the years, but now, planning… Read More
At one time, Campbeltown was Scotland’s whisky capital with more than 35 distilleries. That number dwindled to just three over the years, but now, planning approval is being sought for up to three new distilleries. The latest project is the Witchburn Distillery to be built on the former RAF Macrihanish site, and we’ll talk with project manager and master distiller Andrew Nairn on this week’s WhiskyCast In-Depth. We’ll also hear from Beam Suntory’s Daryl Haldane following the auction Friday of a one-of-a-kind Bowmore single malt to raise money for projects on Islay. In the news, Stirling Council has rejected plans for the proposed Wolfcraig Distillery for a second time, Scotch Whisky Association leaders continue their push to reserve an excise duty hike planned for August, and Jack Daniel’s lost a trademark infringement case in the U.K. to a pair of comedians.
At one time, Campbeltown was Scotland’s whisky capital with more than 35 distilleries. That number dwindled to just three over the years, but now, planning… Read More
At one time, Campbeltown was Scotland’s whisky capital with more than 35 distilleries. That number dwindled to just three over the years, but now, planning approval is being sought for up to three new distilleries. The latest project is the Witchburn Distillery to be built on the former RAF Macrihanish site, and we’ll talk with project manager and master distiller Andrew Nairn on this week’s WhiskyCast In-Depth. We’ll also hear from Beam Suntory’s Daryl Haldane following the auction Friday of a one-of-a-kind Bowmore single malt to raise money for projects on Islay. In the news, Stirling Council has rejected plans for the proposed Wolfcraig Distillery for a second time, Scotch Whisky Association leaders continue their push to reserve an excise duty hike planned for August, and Jack Daniel’s lost a trademark infringement case in the U.K. to a pair of comedians.
March 22, 2023 – In a nearly 90-minute hearing punctuated with laughter, the United States Supreme Court heard oral arguments in a lawsuit over whether a “Bad Spaniel’s” dog toy violates the trademark protection Jack Daniel’s has for its whisky bottles. The lawsuit (Jack Daniel’s Properties, Inc v. VIP Products) filed by Jack Daniel’s owner Brown-Forman claims the dog toy creates consumer confusion, while the poop-themed toy’s maker argues it falls within legal exceptions for parodies. The Supreme Court agreed to take the case after VIP Products won an appeals court ruling when the court used a standard defining when Read More »
March 22, 2023 – In a nearly 90-minute hearing punctuated with laughter, the United States Supreme Court heard oral arguments in a lawsuit over whether a “Bad Spaniel’s” dog toy violates the trademark protection Jack Daniel’s has for its whisky bottles. The lawsuit (Jack Daniel’s Properties, Inc v. VIP Products) filed by Jack Daniel’s owner Brown-Forman claims the dog toy creates consumer confusion, while the poop-themed toy’s maker argues it falls within legal exceptions for parodies.
The Supreme Court agreed to take the case after VIP Products won an appeals court ruling when the court used a standard defining when a potential trademark infringement enjoys First Amendment protection. The court ruled that because the dog toy was a “non-commercial use” done with humorous intent for an “expressive purpose,” it is protected on free speech grounds.
During today’s hearing, Justice Elena Kagan appeared to have some issues understanding the parody involved in the “Bad Spaniel’s” dog toy in an exchange with VIP Products lawyer Bennett Cooper.
JUSTICE KAGAN: Well, what is there to it? What is the parody here?
MR. COOPER: The parody?
JUSTICE KAGAN: Yeah.
MR. COOPER: The parody is of —
JUSTICE KAGAN: Because maybe I just have no sense of humor, but — (Laughter) – what’s the parody?
MR. COOPER: The parody is multifold. The — the — the testimony indicates, and it’s not been disputed, that the parody is to make fun of marks that take themselves seriously.
JUSTICE KAGAN: Well, I mean, you say that, but you — you know, you make fun of a lot of marks: Doggie Walker, Dos Perros, Smella R Paw, Canine Cola, Mountain Drool. Are all of these companies taking themselves too seriously?
MR. COOPER: Yes. In fact, you don’t see a parody as — as a bourbon —
(Laughter.)
JUSTICE KAGAN: I mean, just like soft drinks and liquor —
MR. COOPER: And — and I would say all —
JUSTICE KAGAN: — companies take themselves too seriously as a class?
MR. COOPER: I think there are a lot of products that take them too seriously — seriously and merchandise. You don’t see, for example, something near and dear to my heart, a parody of Woodford Reserve bourbon because you don’t get that building up of an edifice of making them into an iconic — a cultural icon and reference point.
Listen to the Oral Arguments
The case could be a landmark one for trademark holders. Attorneys for Jack Daniel’s argued in a court filing that a ruling for VIP Products “gives copycats free license to prey on unsuspecting consumers and mark holders” by producing all forms of products under the argument that they qualify as parodies.
The Court is expected to rule on the case before the end of its term in June.
Ever since Old Crow and Old Taylor aggressively protected their trademarks in the 1800’s, setting the stage for current-day trademark law, whiskey has kept trademark attorneys busy. Brown-Forman’s Jack Daniel’s brand and VIP Products’ “Bad Spaniels” dog toy now have the opportunity to establish…
Ever since Old Crow and Old Taylor aggressively protected their trademarks in the 1800’s, setting the stage for current-day trademark law, whiskey has kept trademark attorneys busy.
Brown-Forman’s Jack Daniel’s brand and VIP Products’ “Bad Spaniels” dog toy now have the opportunity to establish limitations on how far an alleged “parody” use of another’s famous brand and trade dress can go before it becomes illegal infringement. On January 31, the Supreme Court of the United States set oral argument for March 22, 2023 in this epic legal battle.
Basically, VIP sells a dog toy that is shaped like a bottle of arguably the most famous brand of American whiskey and makes all sorts of “poop jokes” on the toy. It is indisputable that the dog toy’s look, design, and words are intended to trade on the brand recognition of Jack Daniel’s, but VIP insists that it’s all in good fun. In fact, in a brief filed with the Supreme Court where it tried to convince the Court that it should not even consider the case, VIP smugly argued that “It is ironic that America’s leading distiller of whiskey both lacks a sense of humor and does not recognize when it—and everyone else—has had enough. [Jack Daniel’s] has waged war against [VIP] for having the temerity to produce a pun-filled parody…” And when famous brands are made fun of, “the world did not end.”
Jack Daniel’s argues that the dog toy tarnishes its brand and is likely to confuse consumers. The First Amendment was never intended to protect speech that confuses and misleads consumers, and the Lanham Act restricts commercial use of protected Marks, so no matter how funny poop jokes might be, it’s no laughing matter to violate the law. Jack Daniel’s insists that it likes dog and jokes—including jokes at its expense—but VIP is mimicking Jack Daniel’s iconic trade dress to mislead consumers and to profit off of Jack Daniel’s goodwill. Plus, Jack Daniel’s doesn’t want its customers confused or have them “associating its fine whiskey with dog poop.”
The United States District Court in Arizona (where VIP is based) sided with Jack Daniel’s, but the Ninth Circuit Court of Appeals reversed, setting the stage for the Supreme Court to rule on whether anyone can use famous trademarks to sell dog toys or whatever else they want, as Jack Daniel’s suggests—“sex toys, drinking games, or marijuana bongs, … all in the name of just having fun.”
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 21st 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 17th 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.
