Today’s competitive market compels liquor distillers to not only compete in flavor, but also aesthetics. In a recent verdict, the US court of Appeals for the Sixth circuit upheld that the dripping red wax used on bottles of Maker’s Mark® Bourbon is protected as a trademark. Maker’s Mark® used the dripping red seal since 1952 as a distinction. Maker’s Mark registered the seal as a trademark in 1985.

In 2003, Maker’s Mark® filed a lawsuit against Jose Cuervo tequila alleging trademark infringement.  Jose Cuervo, previously used a straight edged seal on the tequila bottles, started using the dripping red wax seal in 2001.

Jose Cuervo counterclaimed that the seal is a functional feature of the bottle. Because of this, it should not be granted as trademark under the US functionality doctrine. However, the judges ruled in favor of Maker’s Mark®, stating the company used the trademark since 1985. The seal is now a recognized distinction among various brands. Moreover, the judges also disagreed with Jose Cuervo’s other argument that it would be difficult and costly to design a new mark.

In 2002, Business Week declared the red dripping seal as one of the most recognizable brands in the world. In addition, there were several articles that focused on the bourbon maker’s patented unique aesthetic design.

If you have a trademark infringement claim, please contact us.