Trademark on Maker’s Mark wax seal

The red wax seal atop an Maker's Mark bottle makes the bourbon stick out on store shelves. Whether that differentiation can be kept by the bourbon business is up to a panel of three federal judges.

The U.S. 6th Circuit Court of Appeals on Thursday stepped into the difficult disagreements over whether Manufacturer's Mark can keep a logo on the wax seal and impose an injunction discontinuing any other spirits business from using a similar top.

Manufacturer's Mark won an order in 2010 awarding it exclusive rights to the dripping wax seal. U.S. District Judge John G. Heyburn II in Louisville allowed Manufacturer's Mark an injunction forbidding any other business from using a similar seal and appear, saying the bourbon manufacturer held a valid logo.

The order stopped a seven-year long litigation between Deerfield, Ill.-based Fortune Brands, which possesses Manufacturer's Mark, and London-based Diageo North America and Casa Cuervo of Mexico, which used a dripping red wax seal on specific bottles of its Reserva tequila. Its spirits business has divide into a brand new firm called Beam Inc.

The appeals court didn't give a timeline for determining the case.

Manufacturer's Mark lawyer Edward T. Colbert said the seal serves no function other than to make the bourbon bottles identifying and that Cuervo does not need to use it.

"What they have here is a competitive urge to make use of the wax, not a competitive need to use wax," said Colbert, the brother of comedian Stephen Colbert.

Attorneys for Diageo and Cuervo claimed that using a wax seal would not cause the firm's tequila to mistake with the bourbon or believe the two firms were affiliated.

"Would not it be a reasonable supposition that the same firm made the two products because of the red wax seal?" requested Judge Karen Nelson Moore, looking at a bottle of Maker's Mark and a bottle of Cuervo brought into the court.

"They understand just where that comes from," Cuervo lawyer Michael Aschen said of the tequila. "They are not going to get confused and believe it comes from Kentucky."

The Samuels family, which created Manufacturer's Mark in 1958, trademarked the identifying seal, which functions merely a cosmetic function.

Cuervo chosen to contain a wax seal that was dripping as portion of an attempt to produce an artisan appearance on bottles in 1997. The bottles of Reserva with the brand new seal entered the U.S. market in 2001 in a limited generation of 3,000-to-4,000 bottles. The bottles stayed on sale in the U.S. for about three years.