Foreword: Trademark fights among distillers and whiskey merchants with proprietary brands were common in the pre-Prohibition era. The laws were lax, often poorly written, and subject to interpretation by judges. Although a number of individual past posts have detailed those disputes, I have selected three examples here that illustrate various aspects of such conflicts.
The number of disputes over brand names of whiskey actually taken to court were relatively small, likely because the legal situation. An exception were the liquor house owned by partners and brothers-in-law Aaron Bluthenthal and Monroe Bickart of Atlanta, Georgia. Their experience in trying to protect their popular brand “Old Joe Rye” from competition is instructive.
In 1905 Bluthenthal & Bickart brought a suit in the Florida courts against Theodore Mohlmann, a Jacksonville liquor dealer. They claimed Mohlmann had violated their trademark on their Old Joe Rye, including the size, shape and color of the bottle, a similarly designed and colored label, and the name given the whiskey: “Old Geo.” The crowning indignity, the plaintiffs said, was Mohlmann copying even the small corkscrew that the Atlanta firm attached to the Old Joe bottle. The Florida corkscrew was claimed to be identical in “size, shape, quality and appearance.”
A Georgia liquor company attempting to shut down a Florida competitor in Florida courts clearly faced daunting challenges. When the lower court in Jacksonville denied B&B an injunction and dismissed their case, B&B appealed to the State Supreme Court. While that court had some legal quibbles with the initial decision, it did not overturn it. Mohlmann’s Old Geo remained on the market.
Seemingly undaunted by this setback, the brothers-in-law subsequently pressed similar charges against a Montgomery, Alabama, liquor dealer named J. W. Epperson. Like Mohlmann, Epperson was aping the Old Joe bottle right down to the corkscrew. He called his booze, “Old Jack.” Once again, Bluthenthal and Bickart found it hard sledding in an out-of-state court. After a lower court denied their action for an injunction against Epperson, B&B appealed to the Alabama Supreme Court.
That court upheld the verdict but went further. The judges scolded the Georgia partners on the grounds that examination had shown that their Old Joe brand was not as, as advertised, very old stock, fine old whiskey, or even rye whiskey. B&B had misrepresented the whiskey on their labels and marks with false statements, the judges said, and by so doing had vitiated any trademark protection that the partners might claim. Although Epperson’s conduct was “without justification,” the Alabama Supreme Court ruled, it was unwilling to issue an injunction and make him stop selling Old Jack Rye.
William S. Turner and Charles S. Looker joined forces sometime before 1880 to create a new Cincinnati liquor house. The pair saw an opportunity to cash in on the popularity of a whiskey called Canadian Club that was finding favor with the American public, a brand from Hiram Walker at his giant distillery at Walkerville, Canada, near Windsor, Ontario. They created a copy-cat brand they called “Windsor Club Whiskey,” and claimed it was made in Walkerville, distilled and bottled under the supervision of the Canadian government — all patently untrue.
Ferocious in protecting his trademarks, Walker, shown here, was furious. He gained the support of the Canadian Commissioner of Inland Revenue who abjured publicly any notion that his office was supervising Turner-Looker’s whiskey. Forced by the publicity to back off that claim the Cincinnati firm subsequently went on the attack against Walker and Canadian Club, asserting that their Windsor Club brand…must not be confused with the low, common, trashy goods bottled in bond in Canada.”
In 1898 Hiram Walker & Sons Ltd escalated the conflict, taking full page ads in U.S. journals. The ads claimed as fraudulent the idea that Turner-Look’s whiskey was made by The Windsor Club Distilling Co., Walkerville, Canada: “There being no such concern….We are good for heavy damages if Turner-Looker Co. can show that this is a libel; and we will test the matter in their own courts if they ask us to.” Turner-Looker knew that if the Walkers had their day in court, they might very well win. A year earlier, detectives hired by Hiram had triggered an investigation of whiskey fraud in Chicago that led to several arrests and convictions. The Ohio partners stayed away from the justice system, preferring to mount a vigorous, some even might say vicious, counter-attack in the press.
Turner-Look claimed publicly that Walker’s Canadian Club tested “under-proof,” i.e., less alcohol than stated, and was issued in short measure bottles. The Walkers could not sue Turner-Looker for trademark infringement since technically none had occurred. Turner-Looker’s ploy in claiming to be of Canadian origin was not illegal — just part of the accepted chicanery that was common in the whiskey trade. The dispute between the whiskey companies dragged on for years to no conclusion, ended only by National Prohibition in 1920.
Charles Knecht and his son Louis began a Cleveland, Ohio, liquor business about 1886, concentrating on only a single brand, one they called “Raven Valley Whiskey.” Shown here on an advertising paperweight, the illustration was of three stylized birds, presumably ravens, sitting on a leafy branch. In 1905 they trademarked the name. Their application described the mark as “The words ‘Raven Valley,’ beneath which is a representation of three ravens perched upon the branches of tree.” Although all of this seems straightforward and innocent enough, it would bring down on the Knechts the fury of one of the most powerful distillers in Kentucky, W. A. Gaines Co. of Frankfort, maker of “Old Crow Bourbon.”
The Kentucky distiller constantly faced trademark challenges, appropriating or approximating the Old Crow label, by whiskey oufits hoping to profit on the national popularity of the brand. Gaines almost always was successful in court. When word of the Knecht’s application for “Raven Valley” reached Gaines executives, they took immediate legal action alleging that the name and image violated their trademark. When the Commissioner of Patents ignored their protest and approved the application, the Old Crow crew appealed the decision to the U.S. Court of Appeals in the District of Columbia.
The Gaines legal challenges must have caused a great deal of concern on the part of the Knechts. Not only did they have the expense of defending Raven Valley Whiskey against a “deep pockets” foe, but if they lost it would only be a matter of time before they would be served a desist order and their flagship brand would be terminated under pain of law. While this was uncharted territory for the Cleveland company, the Gaines outfit by contrast could count on highly-paid, well-practiced attorneys to handle the case. Brimming with confidence, its attorneys contended that the ravens would “naturally lead to a confusion and enable the applicants [Knechts] to perpetrate a fraud.”
In the end, however, the appeals court disagreed and the judges’ opinion stated, in part, “when the words ‘Raven Valley’ are considered they are so different from the words ‘Old Crow’ that any confusion or deception would be very improbable.” While recognizing that ravens and crows were both birds, the Court found no similarity in their depiction on the whiskeys. When Gaines owners sought to take the case to the U.S. Supreme Court, the high court denied them a hearing. Almost improbably, the Knechts had won. The Ohio raven had triumphed over the Kentucky crow.
Addendum: Some further comment seem appropriate on the image of the Old Crow, as it changed over time. As shown here, in the 1940s the crow became a dandified gent with top hat, bow tie, vest and spats. A cartoon of that era was headlined “How to distinguish a Raven from a Crow.” It pointed out that the raven is bigger and took a swipe at Old Crow and its anthropomorphized corvid.