MAKER’S MARK SEALS IT UP

It turns out that you can trademark wax. Not only is the Maker’s Mark red wax seal iconic, it’s now the company’s exclusive property. A federal judge issued an injunction in April preventing Casa Cuervo from using a dripping wax seal on its tequilas sold in the United States, ending a seven year legal battle over the bottle topper. The ruling by US District Judge John G. Heyburn II comes in a long-running lawsuit between Maker’s Mark and its competitors, Diageo North America and Casa Cuervo, over the Fortune Brands (who owns Maker’s Mark) trademark on the wax seal. “The Court considers the red dripping wax seal inherently distinctive, because it is a unique mark used in an unusual way to draw in the consumer,” Heyburn wrote. Cuervo used a dripping red wax seal on special bottles of its Reserva tequila. Heyburn’s ruling barred the companies from using the seal. The Samuels family, which created Maker’s Mark in 1958, trademarked the distinctive seal, which is purely decorative. Back in 1997 Cuervo began using a dripping wax seal on bottles to create a more artisanal look on its Reserva tequilas. The bottles with the new seal entered the US market in 2OO1 in a limited production of 3OOO to 4OOO bottles and were available for about three years. Maker’s Mark sued over the seal in 2OO3, claiming it violated the long-standing trademark. Cuervo stopped using the dripping wax seal five years ago. Maker’s Mark spends about $22 million annually to market its bourbon, and sells about 8OO,OOO cases annually. The ad campaigns focus heavily on the dripping red wax seal. Along with the ad campaigns, Maker’s Mark uses onsite dipping stations that allow customers to make their own wax seals on bottles, as well as bartender training. “Because of the unique nature of the advertising’s focus on the red wax, the mark has, in some ways, taken on a life of its own, garnering significant attention beyond the purchased advertising,” Heyburn wrote. Heyburn declined to award damages, saying Cuervo violated the trademark, but did not focus its marketing efforts on the red wax seal to the point of damaging Maker’s Mark’s brand.