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.

Five Peppers Stirred the Copper Pot

Among the best known Kentucky bourbons is “Old Oscar Pepper,” a brand that endured for more than 80 years and a tradition honored even today.  The story behind this whiskey is so long that this post deals only with the Pepper family, the five members, including two women, who guided the fortunes of the distillery until 1878 when it was sold.  My next post will describe what happened over the following 40 years.  But first we get to know the Peppers:

Elijah Pepper:  He was the founding father of the Pepper distilling dynasty, born about 1775 in Fauquier County, Virginia, the son of Samuel Pepper and Elizabeth Holton, accounted “an English lady.”  In 1794, not long out of his teens,  Elijah married Sarah O’Bannon, who the records indicate may have been only 13 or 14 at the time.  In 1797, with Sarah and her brother, John O’Bannon, this Pepper moved more than 500 miles west into Kentucky, settling near the town of Versailles, Woodford County.  There he established his first distillery.

After moving for several years to Bourbon County, Elijah returned to Woodford County and by 1812 was paying taxes on 200 acres along Glenn’s Creek. He had selected this location because a branch stream coursed through the property and three pristine springs gushed near the banks of the creek.  There he established a farm, a gristmill and a distillery.  Although  other nearby Kentucky farmers had been forced to give up distilling because of the federal taxes imposed, Elijah seemingly had deeper pockets, bought their grain and legally made it into whiskey.

By that time Elijah and Sarah had a family of seven children, four boys and three girls.  For them he built a two-story log house with a massive exterior limestone chimney.  The only part of the original Pepper settlement that remains, the house was enlarged by subsequent residents.  It is shown here as part of a Kentucky archeological project that has sought to restore and preserve the site.

All of Elijah’s structures were built of timbers on foundations of stone.  Land division maps indicate the grist mill was constructed high on the stream where the force of the water could turn a wheel and that his distillery was nearby.  The location of his slave quarters has not been identified, for — truth be told — the Peppers were slave owners.  Census records for 1810 indicate that the family had nine enslaved blacks,  With the prosperity of his holdings, Elijah was able over the next ten years to increase his slave holdings to twelve, seven males and five females.  Owning more hands for field work allowed Elijah to increase his land holdings to 350 acres.

The prosperity that followed in the next decade allowed him to buy even more slaves and the 1830 census recorded him holding thirteen males and twelve females in bondage.  An inventory taken at Elijah’s death in March 1831 provided other indications of his wealth.  His distillery included six copper kettle stills, similar to the one shown here, 74 mash tubs, a number of kegs and 41 barrels of aging whiskey, equivalent to 1,560 gallons.  His livestock counted 22 horses, 113 hogs, 125 sheep and lambs, and more than 30 head of cattle.  He also owned numerous implements for use in agriculture and timbering. 

Sarah O’Bannon Pepper: Only days before his death, Elijah Pepper made a will that left the distillery and other property to his wife.  Now about 50 years old, Sarah seems to have been fully up to the task.  The daughter of William O’Bannon and Annie Neville, she was the niece of General John Neville of Virginia, a prominent officer in the Civil War and a personal friend of George Washington.  The Nevilles were wealthy gentry in Virginia and may have assisted the Peppers financially at the start.

Although Sarah’s education may have been truncated by her early marriage, her husband entrusted Sarah with aspects of managing their large farm and associated businesses.  The inventory of Elijah’s possessions indicate that she had overseen purchases of farm and distillery equipment including, “stills and tubs, etc., in still house.”  She also likely was responsible for buying the carpeting, silver and other expensive furnishings that are said to have graced the Pepper home.

The presumption of an historian who researched the property for inclusion on the National Register of Historic Places is that after Elijah’s death Sarah was in charge of managing the family businesses, including the distillery and whiskey sales, for a period of about seven years, 1831 until 1838.  That year she sold her interest to her eldest son, Oscar Pepper, who had been assisting her. 

Oscar Neville Pepper:  Born in 1809, Oscar took the relatively small whiskey business his father had founded to a new level.  Thus 1838 is recognized as the founding year of the re-named Oscar Pepper Distillery and the origin of the “Old Oscar Pepper” brand.  After buying out the shares of his brothers and sisters,  Oscar began making major improvements on the property.  He replaced the log structures of his father’s milling and distilling businesses with stone buildings and put an addition on the house.  Indicative of the amount of construction going on was a record in the 1850 census that a stone mason from Ireland named Thomas Mayhall was living with the family.  

The move from timber to stone was not a difficult one since the hillsides that surrounded the Pepper property were a rich source of limestone, a mineral important to the farmer-distiller families.  The limestone bedrock was good for growing corn and the waters of limestone-filtered springs helped produce whiskey with a distinct flavor.  Working with limestone for construction, however, took the kind of expertise that Mayhall brought.  To form building blocks the bedrock had to be quarried and shaped.  To create mortar the limestone had to be fired, ground and slaked.  As indicated by land records, the resulting distillery building was a one-and-a half story rectangle structure with an asymmetrical gable roof about 60 by 75 feet in area.   Shown below is a picture of Pepper’s stone distillery.

Oscar’s most important decision was to hire as his master distiller the now-famous Dr. James Crow, a Scottish chemist.  Crow has been hailed as the  individual who single-handed enhanced the bourbon-making process by improving and codifying sour-mash fermentation, pot still distillation, and the process of aging in wooden barrels.  

Crow also insisted that no more than two and one-half gallons of whiskey should be produced from a bushel of grain.  Shown here is a device that may have been invented by Crow.  It is a single chamber where the alcoholic content of distilled bourbon could be tested.  This example included hydrometers for checking both the first and second distillations.

Crow worked for the Peppers from 1833 until 1855, with exceptions being 1837 and 1838, possibly because Oscar’s stone construction was proceeding.  Crow’s deal was that he would be compensated by being given one-tenth of the production.  In 1855 the distillery produced 80 barrels from which Crow presumably drew eight.  In his admiration for the Scotsman, Oscar named one whiskey “Old Crow” and gave the distiller a house of his own on the property.

Meanwhile, Oscar Pepper was having a personal life.  In June 1845 he married Nancy Ann (also given as Annette) “Nannie” Edwards, a woman born and raised in Woodford County who was 18 years old when they wed and about 17 years younger than her husband.  In subsequent years under Oscar’s leadership the farm and distillery flourished and his family increased to seven children.  The 1860 census indicated real estate valued at $31,000, the equivalent of some $770,000 today.  His personal property that included such extravagances as a piano, an icebox, and law books valued at $36,000. 

Oscar’s wealth also included twelve male and eleven female slaves, some of them obviously inherited from Elijah.  They would have been tending the crops on his large farm as well as working in the Old Oscar Pepper Distillery along side Dr. Crow.  A record of births in Woodford County for 1859 lists Oscar and Nannie having a baby on April 10 to whom no name yet had been given, but data suggests later was christened Mary.  The same year two of the Peppers’ slave women had given birth in August, a girl named Maria and a boy named Willie.  Oscar Pepper is recorded in the column for the father’s name.  My guess is that because slaves were considered property not persons, he appears there as the owner not the progenitor.  

Oscar Pepper died in June 1865 at the age 56 and with his family and friends mourning by his graveside was interred in the Lexington Cemetery in Fayette County.  Shown here is his gravestone. 

Nannie Edwards Pepper:   The inventory of Oscar’s possessions taken after his death indicate how much he had expanded the Pepper estate.  It included 400 barrels of corn, 400 bushes of rye, 40 bushels of barley malt and 30 barrels of barley, a large copper still and a boiler, all part of the distilling operation.  The alcohol on hand included 120 gallons of whiskey.  This Pepper owned 829 acres of land and livestock that included 21 horses and mares, 7 mules, 25 milk cows, 30 yearlings and steers, 56 sheep and more than 100 hogs.

Unlike his father Oscar left no will.  A court settlement in 1869 divided his property in seven unequal lots for his seven children.  Presley O’Bannon Pepper, the youngest, only seven years old, received the largest share, including 160 acres of land, the distillery, the grist mill and the family home.  This was the court’s way carefully of providing for Nannie Pepper.   Since P. O’Bannon was a minor and would remain so for another 14 years, it put most of the financially productive property in her hands.

Still a relatively young woman at 36, Nannie, unlike her mother-in-law Sarah, seems to have had no interest in operating the distillery by herself.  Moreover, since the end of the Civil War all the Pepper slaves were gone.  As guardian of P. O’Bannon’s inheritance, she soon leased the property to Gaines, Berry & Company of Frankfort, Kentucky, a firm where the famous Col. E. H. Taylor Jr. was a partner.  The agreement gave the Frankfort group control over the distillery and all its equipment, the distiller’s house, and two stone warehouses.  The two-year agreement also included the grist mill and a pen near the distillery where the hogs were fed the spent mash.

Born in 1850, Nannie’s eldest son, James, 15 years old at the time of his father’s death, appears to have be given a role in the running of the distillery by Gaines, Berry & Co.  They appended the name “Old Crow Distillery” to the Pepper property and made “Old Crow” their flagship brand.

James Pepper:   Possibly egged on by the ambitious Col. Taylor [see my post of Jan. 2015], James Pepper apparently grew tired of playing second fiddle to his mother and in 1872 successfully sued to gain control of the distillery.  The result apparently did not cause a serious mother-son breach as Nannie is recorded giving a deposition for James later in a court case.

The next few years for the Pepper distillery are somewhat muddled.  After taking control, James apparently teamed with Col. Taylor, who had broken with Gaines, Berry and the two made improvements in the plant and increased operations.  Gaines, Berry, however, apparently retained sufficient financial interest that the “Old Crow” trademark was transferred to them, leaving James with the Old Oscar Pepper brand.

After five years of operating the distillery, James experienced severe financial difficulties and was declared bankrupt in 1877.  The Peppers’ loss was Col. Taylor’s temporary gain as he took sole ownership of the Old Oscar Pepper Distillery.  But Taylor — who had other distillery interests — shortly after met with his own financial downfall.  That led to the transfer of the Pepper distillery briefly to George T. Stagg, another well-known Kentucky whiskey man, and finally in 1878 to Leopold Labrot and James Graham of Frankfort.  Shown above is an illustration of the distillery at the time of their purchase.  Never again would a Pepper family member own the property founded by Elijah, nurtured by Sarah, expanded by Oscar, protected by Nannie, and lost by James.

Afterword:  Although the Old Oscar Pepper distillery was in other hands, the Pepper name continued for years in the trade when James later founded his own distillery in Lexington, [see my post of September 2012].  When James died in 1906, he was interred near his father and Nannie, who had passed in 1899.  A large monument, three Doric pillars on a three step base, marks the spot where the Pepper clan is buried in Lexington Cemetery. 

  

Now came the turn of Labrot & Graham to run the historic distillery.  Their names are combined with the Peppers in a mill wheel above. Their story and its outcome will be the subject of my next post. 

Note:  Much of the information for this post came from an undated National Park Service document associated with the listing of the Pepper properties on the National Register of Historic Places.

Ohio’s Ravens vs. Kentucky’s Crow — and the Winner?

               

As shown here left, the Common Raven (corvus corax) is larger than the American Crow (corvus brachyrhynchos).  When Charles A. Knecht of Cleveland, Ohio, was forced to defend his “Raven Valley” brand of whiskey against a suit by W.A. Gaines, Kentucky maker of “Old Crow,” however, the crow clearly was the biggest bird in the room.  There ensued a high stakes tussle that ended in the U.S. Court of Appeals with a result that may have come as a surprise to both parties.

Charles Knecht was an immigrant from Germany, born in October 1836 in Baden, the son of Martin and Catherine Knecht.  At the age of 16 in 1852, he left his homeland for America, ultimately settling in Cleveland.  While still in his early 20s,  Charles married a women named Charlotte who also had been born in Germany and was just out of her teens when they wed.  The newlyweds lived in Cleveland’s Sixth Ward where they began their family.  Their firstborn was Louis, born in 1861; followed by John in 1864,  Augusta in 1867, and Cora Rose in 1875.

During those early years Knecht apparently was learning the whiskey trade working for one of the many Cleveland retail and wholesale liquor dealers.  He first surfaced in the city directories in 1882 as a partner in Knecht & Canfeld, a liquor wholesaler.  Their business was located at 95 Bank Street, an address that earlier had been a depot for the U.S. Sanitary Commission, a location not far from the Cleveland Armory.

By 1886, Knecht had broken away from Canfield and begun a liquor business on his own, taking with him his son, Louis, now 25 years old.  They called the company “C.A. Knecht & Son” and were located initially at 123 Water Street.  By 1888 the Knechts, likely needing more space for their business, moved to Champlain Street (later Avenue), shown here in 1909.

Like many wholesale liquor dealers, the Knechts were purchasing whiskey from distilleries and “rectifying” it, that is, mixing and blending it to achieve a certain taste and color, then bottling it under their own label and proprietary name.  The father and son combo concentrated 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.  

C. A. Knecht & Son had been selling this brand for more than a dozen years without trademarking it.  Early on the laws for such were not very effective and many liquor dealers avoided the costly and sometimes lengthy process.  In 1905, however, Congress amended the law to enhance trademark protection.  That development likely spurred the Knechts to apply for registration to the Patent and Trademark Office in April 1905.  As shown below, 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 of Frankfort.  

Owned by a cartel of high powered Eastern investors led by Edson Bradley [see my post on Bradley, Sept. 2011], the Gaines company had trademarked “Old Crow” as early as 1882, and again in 1898 and a third time in 1904.  The Kentucky distiller constantly was facing trademark challenges from distillers and whiskey wholesalers, appropriating or approximating the label, hoping to profit on the national popularity of the brand.  Often offenders argued that the name referred not to the bird but to Elijah Crow, the man often given credit for inventing bourbon whiskey, and since no one knew his exact recipe, it was “open season” on the name.  Gaines was featuring the image of a crow on its advertising.   Some representations, as shown here, were crude but recognizable as a crow.

The several ownerships of the Old Crow brand through the years constantly have been in litigation of some kind.  The image above, labeled “The Court Rules Again in Favor of Old Crow,” was part of an 1949 ad that ran major magazines. It also informed the public:  “During the first century of its distinguished history, some 1,800 writs, summons, desists were circulated to prevent the imitation of the Old Crow name and label.”

Even though Gaines had not reached 1,800 legal actions by 1905, it almost always had been successful in court.  When word of the trademark 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 have to 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 noting that ravens and crows were both birds, the Court also 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.

Sadly, Charles Knecht did not live long enough to see the favorable outcome of the trial, dying in May 1905 at the age of 69.  With his widow, Catherine, and his four children grieving by his graveside he was interred in Cleveland’s Woodland Cemetery.  His gravestone is shown here.  The company that bore his name continued to do brisk business under the leadership of his son, Louis.  In 1911 at the age of 50  Louis suddenly died, however, and with his death the Knecht wholesale liquor company and “Raven Valley Whiskey” shortly after were terminated as well.

Afterword:  Some further comments 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 declares the raven is bigger and takes a swipe at Old Crow and its anthropomorphized corvid.