Can You Trademark a Red Wax Seal on a Liquor Bottle?

whiskey-in-glasses-thumb-200x150-31413 Orange County – Fortune Brands Inc., the owners of Maker’s Mark, believes so. Maker’s Mark, a high-end bourbon whiskey, adds a distinctive dripping red wax seal that coats the top of each bottle it produces. The company has trademarked the dripping red wax look since 1957.

However, in 1997, London-based Diageo North America and Casa Cuervo of Mexico, owners of Jose Cuervo, added a dripping red wax seal to their high-end bottles of “reserva” tequila so as to give it an artisan look. Fortune Brands commenced a lawsuit in 2003 against Diageo and Casa Cuervo for trademark infringement. A United States District Judge in 2010 entered an injunction order against Diageo and Casa Cuervo and any other company from using a similar look and seal. Diageo and Casa Cuervo appealed the District Court decision, andon December 2, 2011, the United States 6th Circuit Court of Appeals decided to hear the appeal.

Attorneys for Diageo and CasaCuervo argue that the use of a red wax seal is the only similarity between the two liquor bottles. After considering other factors, they argue that the dripping red wax does not cause confusion to the consumer. They note that the Maker’s Mark bottle is square in shape and short in size, uses large black letters for labeling, costs $25 dollars a bottle, and contains bourbon whiskey. Meanwhile, the Jose Cuervo bottle is distinguishable because it is cylindrical in shape and tall in size, uses no labeling, costs $100 a bottle, and contains tequila.

However, attorneys for Fortune Brands believe that the crux of the case involves the dripping red wax seal and not the other distinguishing traits about the bottle or its contents. Bill Samuels, president of Maker’s Mark states, “We hand dip and personalize every Maker’s Mark bottle … this has been our signature trademark since my mom dipped our very first bottle and always will be.” Further, Maker’s Mark spends $22 million annually on extensive advertising and marketing campaigns centered around the dripping red wax seal. Despite its appeal of the decision, Jose Cuervo ceased using the red wax seal six years ago.




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