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.

Whiskey Men Fighting for the North

Foreword:  The Civil War that raged between 1861 and 1865 was a defining event in American history.  An increase in alcoholic consumption among the public during and after the conflict has been attributed to it.  The war also has been credited with spurring the temperance movement in the country that ultimately led to National Prohibition in 1920.  Many who fought on both sides had an interest in the liquor trade.  Often their stories are compelling.  This post on Yankee combatants features four men who in the post-war period found success in the liquor trade. 

No author in America was more famous in the late 19th Century than Lew Wallace, best known as the author of the novel, “Ben Hur" and shown above.  Wallace forever enshrined James R. Ross as the ideal Indiana soldier by penning a biography that extolled his military record in the Civil War and after.  Ross’ career as a successful liquor dealer in Indianapolis, by contrast, was kept almost totally secret. 

With Indiana-born Ross among them, the fancy-dressed 11th Indiana Regiment was sent to join Gen. Ulysses S. Grant’s expedition into Tennessee and saw hot combat at Fort Henry, Fort Donelson and Shiloh.  During this period Lew Wallace was raised to brigadier general and Ross promoted to captain of Company C.  Ross subsequently transferred to Wallace’s staff which seems to have cemented the bond between the two men.  An 1862 magazine illustration of Wallace in battle shows him among aides.  One of them likely was Ross.

After the war, Ross entered the liquor trade, eventually moving to Indianapolis.  There in 1877, he and two partners formed a company called James R. Ross & Co., Wines  & Liquors,  located at 184-188 South Meridian Street, the primary north-south street in the city.  He was hailed during his lifetime as: “Bro. Ross has reflected credit upon every position he has ever filled; as a soldier, he was brave, as a citizen exemplary.”  After Ross’s death in 1900, Wallace published a tribute to him entitled, “An Ideal Indiana Soldier.”  The famous author made no mention that Ross had been a liquor dealer for much of his life.

The unsmiling, almost angry, visage shown below is that of Jeremiah “Jere” Rohrer, an officer of the 127th Pennsylvania Volunteer Infantry Regiment in the Civil War, a post-war civic leader, and the leading liquor dealer in Lancaster, Pennsylvania.  A wartime biography of Rohrer noted that:  “While he sometimes assumed a stern look, he had a big and kind heart, which was always throbbing in unison with his command.”  Whether in battle or in booze, Jeremiah clearly was a force to be reckoned with.  

Major Rohrer and the 127th Pennsylvania would see plenty of hot action.  The regiment sustained multiple deaths and woundings.  Its first major battle was the December 1862 Fredericksburg campaign that proved disastrous for the men in blue.  In his diary,  Jeremiah wrote of “the tremendous and unavailing slaughter, with its frightful loss of brave Union solders….”  The next major conflict for the 127th was the Battle of Chancellorsville in May 1863, once again a bloody Union defeat.  In this confrontation Rohrer was commended for rendering gallant service.  A month later, with his enlistment ended, Rohrer was honorably discharged.  He did not re-enlist. 

Rohrer almost immediately moved to Lancaster, Pennsylvania, and in April 1864 opened a liquor dealership there.  Initially he located the business at 35 North Queen Street but soon found his volume of sales required larger quarters and about 1881 moved to Centre Square, later renamed Penn Square.  The square would be the home of his liquor business for the next 38 years.  It was a entirely fitting location for Rohrer; it was the site of Lancaster’s Soldiers and Sailors Monument, a memorial dedicated in 1874 to pay tribute to the city’s Union soldiers killed during the Civil War.

Lancaster's Penn Square with Monument

The life of Frank G. Tullidge was unalterably changed by his service in the Union Army during the Civil War during which he was engaged in many major battles.  In his early 20s Frank overcame his mother’s opposition and in 1861 enlisted for three years in the 8th Regiment of the Indiana Volunteer Infantry.  Tullidge was made a lieutenant and second in command of his company.  In that role he saw action at many major battles, including Chickamaugua, Missionary Ridge, Kennesaw Mountain and the siege of Atlanta. Eventually he was promoted to captain and released from command to join the staff of General George Henry Thomas as an inspector.

Upon the war’s end, Tullidge moved to Cincinnati. He may have been drawn there by another former soldier, William H. Richardson. Together about 1868 they founded a liquor business under the name Richardson & Tullidge.  The partnership, although it encompassed three moves in Cincinnati, lasted only eight years. In 1876 Richardson departed and Tullidge renamed the firm Frank G. Tullidge & Co. and advertised as a wholesaler and distiller.

Tullidge prospered in part by providing fancy giveaway items to his saloon customers, including a large framed picture of a lightly clad aristocratic damsel being attended by a half-nude slave girl. It was styled to hang in a bar and bore his name at the bottom.  

Throughout his career, Tullidge continued to be involved in Civil War veterans affairs. When Civil War General Andrew Hickenlooper died in Cincinnati in 1904, the press recorded that Frank was among the generals, colonels and other high-ranking officers who acted as pallbearers. As a mere captain, Tullidge must have earned his place escorting the hero’s casket because of his prominence among local veterans.  

As he looked back on his life, Kentucky whiskey man Wiley Searcy probably fixed on the  years of his service in the Union Army during the Civil War as perhaps the most memorable times of his life.  Few soldiers on either side saw as much action as Searcy did, in the process rising from a lowly private to the rank of captain.  

Kentucky citizens were torn between North and South in their loyalties.  For unrecorded reasons, the Searcys chose the Union side. Wiley, age 19,  joined Company  E of the 21st Kentucky Infantry, serving as a private in the ranks.  Searcy saw action in several battles, including Perryville in October 1862, shown here.  During that period Searcy advanced to sergeant.  Early the following year he was discharged from his infantry unit and accepted a commission to become a 2nd lieutenant in Company L of the 9th Kentucky Cavalry.   With this unit Wiley rode in pursuit of Col. John Hunt Morgan and his cavalry raiders.  There were skirmishes at Marrowbone and Burkesville, Kentucky;  Buffington Island, and, at last, the capture of Morgan at New Lisbon, Ohio, on July 26, 1863.  Several months later,  his enlistment period apparently over, Searcy was discharged and went home. 

Still restless for action, in March 1864 he enlisted again and helped to raise a troop designated as Company G of the 30th Kentucky Mounted Infantry.  This time he was elected by the men and served as the company commander with the rank of captain. The company saw action in central Kentucky,  southwestern Virginia and eastern Tennessee, fighting many pitched battles.   According to his 1917 obituary,  Searcy had two horses shot from under him in one afternoon.   In October 1864 during the second battle of Saltville, Virginia,  Searcy was severely wounded.  When he had sufficiently recovered,  he rejoined his unit and as an officer saw action against guerrillas (called “bushwhackers”) in Central Kentucky until the regiment was mustered out at the close of the war.  

After returning home, Searcy in 1886 is recorded as having purchased a distillery, shown above, that had been established in Anderson County in 1818 by Joe Peyton, widely known as “Old Joe.”  Under Searcy’s leadership, the distillery flourished. He added structures and boasted two bonded warehouses and a third “free” (not under the Bottled-in-Bond Act) warehouse. Federal revenue records indicate his active inputs of raw whiskey into the bonded warehouses and subsequent withdrawal of aged liquor.   At one point the former soldier called the facility the Zeno Distillery Company but after 1898 dropped that name in favor of The Wiley Searcy Distillery.  After running the distillery successfully for decades, a fire in 1909 and advancing age caused him to sell it in 1911 and retire.

One thread connects all four of these men:  All were advanced from lower ranks  to captain during the Civil War, a position of considerable responsibility requiring intelligence and leadership qualities.  Perhaps these qualities offer a clue into their later successes in the whiskey trade.

Note:  More complete biographies of each of these men are available in posts on this blog:  James Ross, Sept. 23, 2916;  Jeremiah Rohrer, Oct. 16, 2015;  Frank Tullidge, Nov. 18, 2011; and Wiley Searcy, June 22, 2013.

Wiley Searcy: Kentucky Distiller in War and Peace

Battle of Perryville

As he looked back on his life, Kentucky whiskey man Wiley Searcy probably fixed on the  years of his service in the Union Army during the Civil War as perhaps the most memorable time of his life.   Few soldiers on either side saw as much action as Searcy did, in the process rising from a lowly private to the rank of captain.

The Searcys were a large and well-known clan in Anderson County, Kentucky.  Wiley was born in 1843, the son of Madison Searcy and Susan Mountjoy.  The 1850 census found him, age seven, living with his parents, a brother and two sisters. His father’s occupation was given as “tavern keeper.”   As Wiley was growing up, his mother died, leaving Madison Searcy a widower.

Wiley reached maturity just as the Civil War was beginning.  Kentucky citizens were torn between North and South in their loyalties.  For unrecorded reasons, the Searcys chose the Union side and rosters of Kentucky federal regiments included many with that name. Wiley, age 19,  joined Company  E of the 21st Kentucky Infantry, serving as a private in the ranks.  This company was recruited from parts of southern Anderson and the adjacent Mercer County and mustered at Green River Bridge on January 2, 1862.   With the 21st, Searcy saw action in several battles, including Perryville in October 1862,  shown above.  During that period he advanced to sergeant.

Early the following year he was discharged from his infantry unit and had accepted an officer’s commission to become a 2nd lieutenant in Company L of the 9th Kentucky Cavalry.  The unit was  commanded by a relative, Captain William M. Searcy.   With the 9th Cav Wiley rode in pursuit of Col. John Hunt Morgan and his cavalry raiders as the Confederates slashed and burned through Kentucky and on into Indiana and Ohio.  Battles ensued at Marrowbone, Burkesville, Buffington Island, and, at last, the capture of Morgan at New Lisbon, Ohio, on July 26, 1863.  Several months later,  his enlistment period apparently over, Searcy was discharged and went home.

Saltville Battlefield

Still restless for action, in March 1864 he enlisted again and helped to raise a troop designated as Company G of the 30th Kentucky Mounted Infantry.  This time he was elected by the men and served as the company commander with the rank of captain.  Searcy would carry the title “captain” for the rest of his life.  The company saw action in central Kentucky,  southwestern Virginia and eastern Tennessee, fighting many pitched battles.   According to an obituary,  Searcy had two horses shot from under him in one afternoon.   In October 1864 during the second battle of Saltville, Virginia,  the 9th Kentucky lost two officers killed and several others “severely wounded.”   Among the latter was Wiley Searcy.

When he had sufficiently recovered,  he rejoined his unit and as an officer saw action against guerrillas (called “bushwhackers”) in Central Kentucky until the regiment was mustered out at the close of the war and discharged from service in April 1865.   Even then Searcy sought to serve.  He was recorded as an officer of the Kentucky militia that was enrolled to maintain a military presence and keep the peace in the immediate aftermath of the conflict, a reserve unit that served until 1869.

In 1867 Wiley was married in Anderson County to Susan Linney. They would have one child but not long after childbirth Susan died.  The 1870 U.S. census found Searcy a widower with a young son named Frank.  Searcy was working as a “U.S. storekeeper,” a job that apparently entailed his being responsible for government supplies and also possibly for the mail.  In 1871 Searcy married again.  This time his wife was Mary Agnes Mountjoy, likely a relative of his late mother.  The couple would have another son,  Matthew.

What brought Searcy into the whiskey trade is unclear.  Obviously as the son of a tavern keeper, he had been around liquor much of his life.  In 1886 he is recorded as having purchased a distillery that had been established in Anderson County in 1818 by Joe Peyton, widely known as “Old Joe.”  It is said that Peyton pitched his tent near the mouth of Gilbert’s Creek and commenced to build a distillery.   After a succession of owners, it looked as shown here.   When Searcy bought it, according to insurance records,  the distillery was of frame construction with a metal or slate roof. The property included two bonded warehouses, also of frame construction with metal or slate roofs. Warehouse "A" or No. 1, was located 600 ft south of the still. Warehouse "B" (No. 2) stood 10 ft from No. 1.The facility was known as Distillery No. 45,  8th District of Kentucky.

The Captain wasted no time in advertising his “Old Joe” brand of whiskey, as shown here.   His product contained “no jug yeast,” he claimed and was “The best whisky that can be made.”  At a time when Eastern money men were contemplating “whiskey trusts” in Kentucky, Searcy emphasized that he was an independent distiller. He packaged “Old Joe” in ceramic jugs, making sure that his name was prominent.

Under Searcy’s leadership, the distillery flourished. He added structures and boasted two bonded warehouses and a third “free” (not under the Bottled-in-Bond Act) warehouse. Federal revenue records indicate his very active insertions of raw whiskey into the bonded warehouses and subsequent withdrawal of aged liquor.   At one point he called the facility the Zeno Distillery Company but after 1898 dropped that name in favor of The Wiley Searcy Distillery.

Wiley Searcy Distillery

In 1909, as occurred many times for distilleries, fire ravaged the complex, destroying all three warehouses.   The loss of whiskey was considerable. Searcy, by now 66 years old and perhaps feeling the effects of his wartime wounds, declined to rebuild and instead sold the property to the local Ripy Brothers in 1911.  They rebuilt the distillery and operated until shut down by Prohibition.  The Ripys also changed the name to the “Old Joe” Distillery The mini jug shown here is likely is from the post-1911 period, as is an “Old Joe” label with the picture of a Kentucky “colonel.”

Wiley Searcy died in January 1917. The local newspaper gave the cause as “la grippe (influenza) and other complications.”  He was 74 years old. Surviving him were his widow,  both sons and two young granddaughters. After a service in the Cumberland Presbyterian Church, he was buried  at the Old Lawrenceburg Cemetery, Section #9. The  graves of Wiley and Mary Searcy are said to be marked only with a large boulder for a headstone with a small bronze plaque with names, but no dates or mention of the Captain’s extraordinary military service.  One of his labeled jugs might serve as a monument:

Note:  Although Searcy was not honored with the kind of monument that many Civil War soldiers have been given,  his story was recounted in a large tome, featuring several authors, entitled “Anderson County History and Families.”  Information here was derived from that and other sources.