Whiskey Men and Trademark Disputes

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.

Louis Abel — Whiskey and the Missionary Position

Dictionaries generally define a “missionary” as “a person sent on a religious mission, especially one sent to promote Christianity in a foreign country.”  That had been my understanding until my research on Chicago liquor dealer Louis Abel took me to a court case in which the word “missionary” assumed a whole new meaning.

First, some background:  In 1918 Hiram Walker & Sons, a U.S. and Canadian distilling company and the maker of “Canadian Club Whiskey,” filed suit against Louis Abel, along with his brother Joseph, for infringement of trademark, simulation of labels and direct fraud in refilling Canadian Club emptied bottles with their “imitiation” Canadian whiskey.  Walker, shown here, was assiduous in taking to court any whiskey outfit that seemed to be infringing on his trademarks. 

Circuit Judge Baker, presiding in the Federal District Court of the Northern District of Illinois, obviously approached the case with a great deal of relish, providing his written opinion with a flair unusual for federal cases.  Baker was particularly intrigued by Abel’s “established sales methods” for promoting his liquor at the expense of the Walkers.  He noted that numerous men were employed by the Chicago liquor firm to go to saloons throughout the country and “puff” the house liquors, so that subsequently their salesmen and jobbers would find their way prepared for them.  “In the liquor world these puffers are called ‘missionaries,’” the judge asserted.

These so-called “missionaries” exclusively were men — women generally were not allowed in drinking establishments — who went from saloon to saloon to ask for an Abel labeled whiskey.  When told the saloon did not have it, they would raise a fuss, either ask the proprietor to get it or leave in a huff.  In a day or two Abel’s salesman would appear to take an order.  In other words, these missionaries were not asking for a reform of religious beliefs but for a switch in brands of booze.

Two of those whiskey emissaries were in the courtroom to testify for the Walkers.  They gave enthusiastic accounts of their success as missionaries to achieve “conversion” from Canadian Club to their client’s erzatz product.  Judge Baker was not impressed:  “…The testimonies of Missionaries Craig and Blake is discredited.  They in fact were not the such glowing successes as boosters as they pictured themselves….It is easy to see their tendency to exaggerate.  They might not hesitate to lie…”  Nonetheless, he found their testimony sufficiently credible to consider, given even more dubious accounts by other “…missionaries, salesmen, and bartenders, who testified….” on behalf of Abel and co-defendants.

In the final court document under “Words and Phrases,”  a new definition emerged:   “The term “missionaries,” as used in the liquor trade, applies to men employed to visit saloons throughout the country and puff liquors of a particular manufacture, so that salesmen of wholesalers and jobbers will find the way prepared for them.”

Judge Baker ruled that he found the testimony of two private detectives who testified against Abel more credible than the witnesses who spoke for the Chicago liquor dealer.  He found him guilty as charged and issued an order to cease his trespasses against Hiram Walker & Sons.  The judge did not assess monetary damages.

Louis Abel was the son of Henry and Ellen Abel, born in Baden, Germany, about 1864.  When he was just a child, his parent emigrated to the United States bringing their five sons with them.  The Abels settled in Chicago where the father found work in a lumber yard.  Although the eldest son, John, ultimately was employed as a baker, the second, Charles, became a whiskey dealer and saloonkeeper.  As soon as he had achieved some maturity, Louis left school and joined Charles in his establishment as a bartender.  

At some point Louis made a connection with a longtime Chicago liquor wholesaler named Samuel Myers who alleged his firm had been founded in 1847, although it first showed up in Windy City business directories in 1860.  Although Myers at times claimed to be a distiller, in reality he was a “rectifier,” compounding his own brands — one of them “Brown-Red Bourbon.” Samuels Myers & Co. initially was located at 276 Madison Avenue, moving a decade later to 268-270 Madison Avenue where it spent the next four decades.

How Abel hooked up with Myers is not clear but by 1904, Louis was advertising himself as “successor to Samuel Myers.”  Abel sold his whiskey in a series of stoneware jugs that carried a standard label that advertised:  “Louis Abel, successor to Samuel Myers & Co., Old Whiskies, established in 1847” and listing the same address as the Myers firm.  That address also showed up on an amber flask embossed with Abel’s name. 

For his ceramic jugs Abel turned to The Red Wing Potteries of Red Wing, Minnesota.  That company, founded by a German immigrant named John Paul, had become renowned for the quality of its salt-glazed, hand thrown, kiln-fired items and for the crisp lettering of its under-glazed labels. 

 

Abel’s jugs, in sizes from one to two gallons, indicate a preference for two-toned containers, with brown Albany slip tops and spout and plain stoneware bases.  Red Wing jugs likely were more expensive than other ceramics and today ceramic items of pre-Prohibition vintage from the pottery fetch fancy prices.

By 1911, Abel had moved from his earlier location to the southeastern corner of Market and Washington Streets,  near the Chicago intersection shown here.  That new address was added to the company Red Wing jugs.  Beginning about 1908, according to court records, Abel began to compound and sell “Canadian Type” whiskey, ostensibly similar in proof, color and flavor to Hiram Walker’s Canadian Club.  Missionaries and salesmen then were employed to boost and sell Abel's faux Canadian in bulk to retailers whom they knew would use it to refill Walker’s bottles, “the brand being practically unknown to and never called for by consumers,” according to Judge Baker.

This dubious and illegal practice apparently proved to be quite lucrative to Abel until the Walkers’ 1918 lawsuit.  Subsequent publicity about scheme, however, seemingly led to the firm’s demise.  The same year that Judge Baker accused it of “direct fraud,” the Louis Abel liquor house disappeared from Chicago business directories.  Seven years later Louis died and was buried in Chicago’s Waldheim Cemetery.

Note:  This blog contains two other articles dealing with Hiram Walker’s court actions against trademark infringement.  On April 16, 2016, I posted on Walker bringing down Charles Klyman, another Chicago liquor dealer, and, on December 4, 2017, his less successful campaign against the Turner-Look Co. of Cincinnati.

Turner-Looker Co. and Whiskey Border Wars

While keeping the same name during a run of at least 38 years in the Cincinnati liquor business, the Turner-Looker Company operated under several managements, none of which were adverse to fraudulent claims.  Their chicanery became a important part of what I call the U.S.- Canada whiskey border wars.

The company name referred to two men, William S. Turner and Charles S. Looker, who joined forces sometime before 1880 to create a new Cincinnati liquor house.  The date is somewhat uncertain because the first business directory listing was not until 1887.  Looker had been an employee of Maddux Bros. in Cincinnati, a firm described as “Importers and Jobbers of Tobacco, Coffee, Tea, Cigars, Etc.”  That “etc.” included whiskey.   Turner’s background is less clear but he was identified as a merchant.

The pair saw an opportunity to cash in on the popularity of a brand called Canadian Club that was finding favor with the American public, a whiskey made by 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 right, 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 Windsor Club Whiskey.  Forced by the publicity to back off that claim, as noted in the label change shown here, the Cincinnati firm subsequently went on the attack against Walker and Canadian Club.

Turner-Looker’s ads acknowledged that Windsor Club was bottled in Cincinnati under its own supervision, but insisted that it was made in Canada “by an old distiller.”  The partners also swung back hard at Walker asserting that:  “This brand must not be confused with the low, common, trashy goods bottled in bond in Canada.”  The company issued a second brand with a Canadian flavor, calling it “Toronto Club.”

In 1898 Hiram Walker & Sons Ltd escalated the conflict, taking full page ads in a friendly U.S. journal called the American Druggist and Pharmaceutical Record.”

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.”  Nor was Toronto Club made by the “Toronto Distilling Co.” in the Ontario city, another fraud: “We are good for heavy damages if Turner-Look Co. can show that this is a libel; and we will test the matter in their own courts if they ask us to.”

The Cincinnati firm knew that if the Walkers had their day in court, they might very well win.  A year earlier, detectives hired by Hiram and his boys had triggered an investigation of whiskey fraud in Chicago that led to several arrests and an abject public apology from a key perpetrator, Charles Klyman. [See my post on Klyman, April 16, 2016.]  Smartly, Turner-Looker never initiated a case.

Nonetheless, Turner-Looker Co. mounted a vigorous, some even might say vicious, attack against the Walkers.  It struck back aggressively with ads in its own compliant U.S. publication, The Pharmaceutical Journal.  There it questioned anew the quality of Walker’s Canadian Club, citing a finding by one Alex Mattison, said to be a U.S. whiskey tester in Georgia, that his investigation found Hiram’s liquor at 97.6 proof, rather the advertised 100 proof.  “Any dealer in the State of Ohio found guilty of selling whiskey under 100 proof is subject to a fine of $100.00 and imprisonment in the County Jail for 30 days,” the American firm piously noted.

Turner-Looker also accused the Walkers of issuing Canadian Club in short measure bottles, a practice not uncommon in the whiskey industry.  It asserted that the laws of the United States were more strict than those of Canada and implied that the distiller was being allowed by Canadian authorities to provide an ounce or two less in its bottles than the amount claimed on the label.  As symbolized by its giveaway poster of heavyweight champ, James “Gentleman Jim” Corbett, the Cincinnati firm did not back off from a slugfest.

Meanwhile, the founding partners had sold out their interest to Edward Pattison, an entrepreneur who was prominent in Cincinnati and Northern Kentucky commercial circles.  Beginning in the 1860s, Pattison was primarily in the business of making and selling whiskey.  He was instrumental in a number of liquor ventures, most important as president and treasurer of the Miami Distillery located in Hamilton, Ohio.   After buying the Turner-Looker Company, Edward turned it over to a new management team that included his son, Harry S. Pattison, who eventually became its president.

Under the Pattisons, Turner-Looker issued a blizzard of whisky brands.  In addition to Windsor and Toronto Club they included “Beechmont,” "Bunker Hill,’ ”Clovertop,” "Coon Club,” "Deerford Rye,” "Earth's Best,” "Fallbrook Rye,” "Fremont Rye,””Fresco Rye,” "Green Ridge Rye,” "Heron's Pure Malt,” "Jim Town,” "Kentucky Jewel." "Margrave Penn Rye,” "Martha Hill Rye,” "Miles Standish,” "Old 101,”, "Old Anderson County,” "Old Bradlee Rye,” "Old Cooper,” "Old Larabie Rye,” "Old Licking Club,” "Old Orchard Rye,” "Old Tom Jarrett Rye,” ”Our Pet Bourbon Old 66,” and "Owl Grove.”  Of these, the company trademarked only Beechmont — and not until in 1914.  Shown here are shot glasses issued for several of the brands.

Having sold their company and their names to the Pattisons, the founders did not exit the Cincinnati liquor scene.  As indicated by the 1892 letterhead shown here, the partners collaborated on a new company called the Charles S. Looker Co.  Calling themselves “Distillers and Wholesale Liquor Dealers,” their establishment was located at 67 West Pearl Street.  Turner was president; Looker, secretary and treasurer.  In addition, local business directories in the mid-1890s listed Turner as president of the Wm. J. Turner Distilling Co., from about 1893 until 1910.

The dispute between the Pattisons' Turner-Looker Co. and Hiram Walker & Sons apparently dragged on for years to no conclusion.  Both Windsor Club and Canadian Club gained American sales.  The Walkers could not sue for trademark infringement since 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.

Stymied, Hiram and his sons turned to other battles.  A number of U.S. distillers and rectifiers, recognizing the growing popularity of whiskey from North of the border, were selling imitation Canadian whiskey, made in the United States, in bulk to saloonkeepers for the purpose of refilling original bottles in substitution of the genuine Canadian Club.  In 1914, the Walkers sued 13 liquor outfits, alleging their engagement in that practice. The defendants included some of America’s best known wholesaler/rectifiers, among them E. Eising, Cook & Bernheimer, and Joseph Beck. Interestingly, Turner-Looker was not among the companies sued.

In a case called Hiram Walker & Sons v. Grubman, extensive testimony was heard in the Federal District Court of New York in March, 1915, the famous Judge Learned Hand presiding.  His verdict was that selling non-trademarked whiskey in bottles indicating a trademarked liquor was an infringement of patent-holder rights and illegal.  Damages were assessed against the offending American firms.

With the coming of National Prohibition in 1920, ultimate victory also went to the Canadians.  During the “dry” 14 years, all liquor wholesalers and rectifiers like Turner and Looker went out of business.   Just a handful of U.S. distilleries were allowed to operate for “medicinal” whiskey.  Meanwhile, with no Prohibition north of the border, Canadian distilleries like Hiram Walker’s flourished, supplying whiskey for much of the bootlegging trade.  Americans got accustomed to drinking Canadian whiskey — and liking it.  Moreover, Canadian distillers used their new-found wealth to buy up a number of idled U.S. plants.  When Repeal came, the Canadians were in an immediate position to begin production in the 48.  And did.  But that is another story.

Note:  Among the 13 firms sued by the Walkers in 1914, I have profiled three in previous posts:  E. Eising, January 19, 2012;  Joseph Beck & Sons, September, 2015; and Cook & Bernheimer, November 7, 2016.