Foreword: On April 1, 2015, this website told the story of Nathan Van Biel and his campaign to protect his “Rye and Rock” alcoholic patent medicine. In his efforts Van Biel claimed that those words or any variation of them were a violation of his trademark and the work of “dealers in imitation or counterfeit goods.” He pledged to prosecute anyone who tried. Briefly reviewed here, at least four other whiskey dealers paid scant attention to Van Biel’s threats.
First a word about Nathan Van Biel. Born in Philadelphia in 1832 and by 1860 running a liquor store there, Van Biel moved to New York City in the late 1870s, opening a wine store. Even then, however, Van Beil’s major interest was in a highly alcoholic patent medicine that in 1877 he trademarked as “Rye and Rock” with the Patent Office number of 7001. It was rock candy — large sugar crystals — dissolved in rye whiskey.
Van Biel advertised it widely as: “The great tonic sure cure for malarial diseases,” — an easily made claim since at the time no one had a clue about what caused malaria. He also touted this nostrum as a remedy for asthma, coughs, colds, bronchitis, consumption (TB) and even diphtheria. His attractive ads and trade cards, however, also contained a dire wanting. Considering himself the “father” of Rock and Rye, he declared: “I assumed a father’s responsibility for the article…Infringements will be prosecuted and consumers and dealers will take notice.”
Van Beil meant his threat. In 1880 he sued in the New York courts on the grounds that his trademarking of Rye and Rock gave him exclusive right to the words, in any combination, including “rock and rye.” His target was an enterprise headed by Henry W. Prescott, who appeared in New York directories as a saloonkeeper and liquor dealer, located at 75 Chambers Street.
Prescott scoffed at Van Biel’s “fatherhood” claims. He declared that he and his predecessors in business had been selling white rock candy dissolved in rye whiskey for at least 10 years and selling it as “Rye and Rock.” In fact, Prescott contended, for decades bartenders all over America had been doling out rock candy in rye whiskey. He advertised his “Golden Rye and Rock” vigorously, claiming it as a remedy for coughs and lung disorders.
True to his threats, Van Biel sued Prescott in a New York court — and lost. Unsatisfied, he hired a well known Gotham lawyer and appealed to the Superior Court of New York. Those judges also failed to be impressed and sustained the lower court decision. They held that Van Beil had no exclusive right to “Rye and Rock” and other combinations of the words. A New York legal journal in jest suggested that to influence the court verdict Prescott might have been “dispensing his compound not at the bar alone, but also at the bench”
In making his case, Prescott stipulated that he had never claimed an exclusive right to the use of “Rye and Rock” and that it was a “common name” in the liquor trade. His subsequent ads for “Prescott’s Great Rye and Rock Remedy,” however, made the extravagant claim that: “By the decisions in our favor in the Superior Courts, Prescott’s Rye and Rock stands pre-eminent.”
Recognizing that the court decision had no such effect on Prescott’s libation, other whiskey dealers ramped up their advertising for rock candy and rye concoctions. The Fernberger brothers, Solomon and Henry, operated their Philadelphia liquor store at 1230 Market Street from 1871 to 1902. They advertised their nostrum, as shown below, as benefiting “more people suffering from Colds and Lung Troubles than all the medicines combined.” Indeed a bold claim. Why they chose an angry woman with an umbrella and an empty glass to illustrate their “Rock Candy and Rye Whiskey” is something of a mystery.
A second Fernberger trade card was more subdued. It shows a couple sitting check-to-cheek, reading a paper headlined “Pure Liquors for Medicinal Use.”
This trade card added throat diseases to the promised cures. A third card, not shown here, depicted a train conductor asleep on a train with his mouth open and his head in his left hand. What this image had to do with the Fernberger’s elixir is not clear.
C. B. Barrett & Company was a Boston liquor dealership that sought to cash in on the Rock and Rye decision. Located at 46 North Market Street, it differed from the crowd by identifying the whiskey in its elixir as “Hermitage Rye.” That was a well-respected and popular brand produced by the W. A. Gaines Company of Frankfort, Kentucky. Heavily advertised on its own, Hermitage Rye likely resinated with many in the drinking public. By combining it with Barrett’s rock candy, the result was advertised as a “standard remedy for all diseases of the throat & lungs…The Only Original & Genuine Article.”
That message was carried by a slightly naughty trade card for “Barrett’s Rock Candy and Hermitage Rye,” showing a male, likely the master of the household, making an advance on a serving girl. Given the close proximity of their mouths, one hopes neither has a disease of the throat or lungs. Two other Barrett trade cards, below, had a milder flavor, one depicting bearded youths enjoying a snort. Note the chap on the card at right, apparently sleeping off Barrett’s elixir.
From Chicago the challenge came from Lawrence & Martin. Located at 111 Madison, those liquor dealers added a medicinal plant, Tolu, to their recipe for Rock & Rye. They herald it as “the Great Cure for Coughs, Colds and Consumption and all Diseases of the Throat and Lungs.” A trade card from about 1881 showed a buxom young woman, presumably a sufferer from one of the referenced maladies, dressed for a night on the town, drinking from a bottle of Tolu Rock and Rye. A second card showed an angel bearing a bottle of the nostrum, carrying a sheaf of rye grain.
After the court decision, Lawrence & Martin grew bolder. In 1882 they created a separate company, located at the same address, called the Tolu Rock and Rye Co. They also launched an ad campaign in druggist magazines that plugged their product as a “sure cure.” As proof they cited a letter from Gen. Green B. Baum, the Commissioner for Internal Revenue, stating: “This compound…in the opinion of this office, would have sufficient quantity of the Balsam of Tolu to give it all the advantages ascribed to in this article in pectoral complaints, while the whiskey and syrup constitute an emulsion compound agreeable to the patient.” Baum apparently later was moved from office.
The record indicates that by 1883, only three years after the court ruling C. B. Barrett had been declared bankrupt and Lawrence & Martin had gone their separate ways. No amount of Rock and Rye advertising apparently could save either business. That was the year that the drink was reclassified by federal authorities as a distilled spirit. It no longer was taxed at a lower rate than liquor.
Note: Some of the information contained here was obtained from the Whiskey Advocate website of April 29, 2019.
No comments:
Post a Comment