The Sixth Circuit Court of Appeals has determined that the red dripping 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.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.