Making Something Common Distinctive as a Source Identifier

As anyone who has watch “Game of Thrones” knows, the red wax seal has been around forever (or at least since whenever “Game of Thrones” may have occurred). It was a common way of sealing correspondence and a mark that the correspondence authentically came for the writer.

Many years later, Maker’s Mark, which sells bourbon adopted the red seal on its bottle. The Sixth Circuit Court of Appeals has determined that the red wax seal that Maker’s Mark Distillery has registered as a trade dress element used on its Kentucky bourbon bottles is protected under trademark law due to its strength and distinctiveness in the marketplace, thus upholding a lower court ruling that Jose Cuervo infringed the mark by using a similar element on its tequila bottles. Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., Nos. 10-5508/5586/5819 (6th Cir., decided May 9, 2012). With the apparent care of a connoisseur, the opinion’s author opens with a detailed history, part legend, of the birth of bourbon and explains how Maker’s Mark came to use the red dripping wax seal on its bottles. According to the court, the evidence fully supported the district court’s evaluation of the strength of the mark and its balancing of the factors regarding consumer confusion over Jose Cuervo’s similar mark. The court also upheld the lower court’s award of partial costs and fees to the plaintiff.

This is a lesson, I suppose, that even the most common or banal word or design (“Apple, anyone?), can operated as a powerful as a source identifier, if enough time and marketing capital is sunk into it and if the association holds true with the consuming public.

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