Should Have Stuck with Mason Jars

Submitted by patentadmin on Mon, 10/28/2013 - 13:45

Trademark and trade dress disputes are nothing new in the world of alcoholic beverages. The latest alcohol-related trade dress dispute in the news is between the camps of Gentleman Jack and a legendary (but now deceased) Appalachian moonshiner named Popcorn Sutton.

Popcorn Sutton, who wrote a book called "Me and My Likker" and recorded how-to videos about moonshine production, committed suicide in 2009 as he faced a prison sentence for his moonshining activities. But he inspired another whiskey maker, who honored Sutton with a legally-produced beverage called "Popcorn Sutton's Tennessee White Whiskey." The Popcorn Sutton whiskey was originally sold in Mason jars the way Sutton himself packaged it (although the defendants claim that Sutton was known to say, "My whiskey is too good to be in a damn jar").

The legal troubles began when the distiller of the Sutton-inspired product fancied up the packaging - changing to a square bottle that looks curiously similar to a bottle of Jack Daniels. To complicate matters, the Jack Daniels distillery recently began producing its own "white lightning" - an unaged rye whiskey.

The dispute is one of trade dress instead of trademarks. "Trade dress" generally refers to the shape or other non-functional design elements of the container that a product comes in, and trade dress is considered intellectual property because packaging that is too similar can cause consumer confusion. Trade dress infringement is covered under federal and state laws against unfair competition.

The new shape of the Sutton whiskey bottles is extremely similar to the Jack Daniels Tennessee Whiskey bottle, and even has a black label with white text and similar stylistic elements. The Jack Daniels company's lawsuit says their packaging is part of "one of the oldest, longest-selling and most iconic consumer products" in the history of the U.S.

Some liquor store owners have said that the Popcorn Sutton product sold better when it was in simple Mason jars, possibly because it seemed more authentic. (Speaking of authentic, "Jack Daniels Tennessee Whiskey" is now produced by the California-based Jack Daniel's Properties Inc., a subsidiary of Brown-Forman Corp. That bit of trivia appears to be the whiskey equivalent of finding out your Texas hot sauce is made in New York City. However, the Jack Daniels distillery itself is still located in Lynchburg, Tennessee.)

The lawsuit was filed in the U.S. District Court in Nashville, Tennessee against J&M Concepts LLC, and Popcorn Sutton Distilling, LLC, which operate from Nashville. The plaintiffs have requested an injunction to stop the defendants' use of the square bottles and monetary damages.

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