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Tequila = Whiskey?

by Bruce Jobse

A recent decision from the US District Court for the Western District of Kentucky held that a red wax seal used on top shelf Cuervo brand tequila infringes Maker’s Mark trademark registration for “a wax-like coating…trickling down the neck of the bottle in a freeform irregular pattern” as used with whiskey.  So how do purchasers of an expensive tequila end up confused and purchasing Kentucky bourbon because of a dripping red wax seal?

Obviously tequila is not whiskey or, more specifically, Kentucky bourbon. While it’s true that Kentucky bourbon and tequila are distilled spirits, almost anyone over age 21 can tell you that tequila and Kentucky bourbon don’t have the same look, smell, taste, cost, consumption rituals, or resulting hangover.  These are distinctly different products with brand loyal purchasers who know exactly what they want. There’s no impulse buying here. If someone intends to lay down $100 for a high-end bottle of tequila, there’s usually a distinct reason to celebrate, and they’re not going to be confused into buying a $24 bottle of bourbon because of any red wax seal. Yes, you can buy both products under the same roof, however, consider that the Cuervo Reserva brand in question is usually kept in a glass case under lock and key at most liquor stores, that is when the store has a bottle in stock. So when does the confusion occur, before or after finding  the store manager to unlock the case? As for Maker’s Mark, just go ahead and grab one off the shelf. Although the judge acknowledged that the Cuervo purchaser is sophisticated, and likely even a connoisseur, that reason alone did not preclude the possibility of confusion on the part of the potential Cuervo customer according to the Court’s decision which also cited the similarity of the products and the marketing channels as being in favor of Maker’s Mark.

Well, we’re not buying this round of spirited holdings. Evidently, neither are Cuervo’s owners and their US distributors, who decided to have another shot by filing an appeal with the US Court of Appeals for the Sixth Circuit challenging the District Court’s findings.  Stay tuned for future servings.

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