Some people turn mean after too much liquor. Others, apparently, turn mean after too much litigation. (Maker’s Mark Distillery, Inc. v. Casa Cuervo, S.A. de C.V. et al.)
As our sober readers may remember, Maker’s Mark sued Casa Cuervo, alleging infringement and dilution of the “red dripping wax seal” seen on the tops of the Maker’s Mark bourbon bottles – and formerly seen on the tops of certain Casa Cuervo tequila bottles (see Drink Responsibly and Think Responsibly). The Court found the mark infringed, but not diluted. Finding that Maker’s Mark had not been injured, and that Casa Cuervo had not profited from the infringement – which the Court termed a “close call” – the Court awarded no damages, but did award Maker’s Mark its attorney’s fees.
We had thought that this Solomonic decision would satisfy both parties, allowing them to go home equally vindicated and equally disappointed. Well, we were wrong!
Casa Cuervo appealed and the appeal has turned ugly. Casa Cuervo is seeking a reversal of the finding of infringement and a declaratory judgment that the subject trademark is invalid because it is “aesthetically functional.” In itself, that is fairly understandable and socially acceptable. Unhappily, however, in its reply brief Casa Cuervo has exceeded the bounds of decency by repeatedly denigrating the fine Maker’s Mark whiskey as “comparatively inexpensive bourbon” and an “everyday bottle of … bourbon.” This is simply beyond the pale.
To console ourselves over this unfortunate lapse in good taste and judgment, we went out and had a drink – of Maker’s Mark bourbon.
This is ridiculous. Not the imbibing of Maker's Mark, of course, but Casa Cuervo's insistence that it absolutely MUST have a "red dripping wax seal" on its tequila bottles. Seriously, would not a seal with a slightly different appearance suffice and end this drama?