Red Dripping-Wax Seal of Maker’s Mark Gets Trademark Protection

It was decreed by the 6th Circuit that the red dripping-wax seal that has been on the bottles of Maker’s Mark bourbon since the year 1958 is an “extremely strong” trademark and it deserves protection.

In the case the Maker’s Mark Distillery Inc. which is based in Loretto, Kentucky sued Mexico-based Casa Cuervo and its U.S. distributor claiming that the dripping-wax seal that Cuervo used on the bottles of one of its tequilas infringed on Maker’s Mark’s 1985 seal trademark. In April 2010, a district judge had ruled that Cuervo’s drippy-styled seal did infringe, and it prohibited the company from using it in its products. Following the order, the company applied for an appeal in the 6th Circuit and after considering the case, the 6th Circuit upheld the ruling by the lower court.

A partner at Freeborn & Peters, Mr. David Ter Molen, told InsideCounsel said, “The 6th Circuit’s ruling demonstrates that certain design elements can be an important—and even iconic—part of a product’s brand image, and that diligent companies can create protectable trade dress rights in those design elements that will be protected by the courts.” He also stated that, “Generally, it can be difficult to create protectable trade dress rights, but the benefits of doing so can be great. Here, Maker’s Mark succeeded by recognizing early on the important relationship between its dripping red wax seal and the public image of its product. It then obtained a federal trademark registration for that element, which became incontestable after five years, with a presumption of validity. That registration was an important part of Maker’s Mark’s success.”

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