Don't miss a post -- follow @SippnCorn on Twitter

Wednesday, July 23, 2014

Mellwood Bourbon – The Early Fight Against Phantom Distilleries.

Just after the Civil War, at the intersection of the former Southall St. (later changed to Reservoir Ave. in 1884, and now Mellwood Ave. since 1895) and the Louisville and Shelbyville Turnpike (now Frankfort Ave.) in Louisville, two blocks from the where the Albert A. Stoll Firehouse (now The Silver Dollar) would be built decades later in 1890, the Mellwood Distillery was founded on the South Fork of Beargrass Creek.  The distillery is reported to have been an impressive Richardsonian Romanesque building, but I could not find any pre-prohibition pictures through the University of Louisville online archives, and National Historic Registry documents for the Clifton Historic District did not include any photographs, either, so here’s a picture of the Albert A. Stoll Firehouse from the mid-2000’s, before its renovations:

The Mellwood Distillery is historically significant because it filed one of the first lawsuits against a competitor who lied on its label about having a distillery (and who also tried to imitate the Mellwood brand).

As described in Mellwood Distilling Co. v. Harper, 167 F. 389 (W.D. Ark. 1908), the name “Mellwood” was actually an accident.  It was founded by George W. Swearingen (circa 1837 – 1901), a Bullitt County farmer who, after graduating from Centre College in 1857, ran a small still on his family farm, which he called “Millwood.”  After the Civil War, Swearingen moved to Louisville and opened a distillery, intending to name it “Millwood” after his old farm, on the border of what are now the Clifton and Butchertown neighborhoods.  But when he ordered his brand, its name was misspelled as “Mellwood.”  Swearingen decided to keep it anyway, and in 1895 this brand mistake found permanency when Reservoir Ave. was renamed Mellwood Ave. in honor of the Mellwood Distillery, which had grown to occupy both sides of the street for nearly an entire block.

This 1884 map shows the expansion of the Mellwood Distillery across both sides of then Southall St:

Photograph credit:  Image No. ULUA.LouAtlas1884, Plate 7 in the Kentucky Maps collection, University of Louisville Photographic Archives, Louisville, Kentucky, accessed at:

Swearingen sold his distillery in the late 1800’s, and after he sold, it appears to have become part of the infamous Whiskey Trust (Kentucky Distilleries and Warehouse Company) in 1899.  Having made his fortune, Swearingen stayed out of the distilling business, and focused instead on real estate (as president of the Kentucky Title Company) and banking (as founder of the Union National Bank).

As the Mellwood Distillery continued to experience great success, it attracted an imposter and led to one of the earliest court rulings on false labeling and fake distilleries.  The imposter was the Harper-Reynolds Liquor Company, a distributor in Ft. Smith, Arkansas.  Harper bought blended whiskey and bottled and labeled it as “Mill Wood,” used the name “Mill Wood Distilling Co.,” used a picture of an extensive distillery on the label, used “Kentucky” on the label, and included this description on its label:

This celebrated whiskey is made exclusively by the sour mash fire copper process, employed only in the distillation of the finest whiskeys, from carefully selected grain, and bottled only after being matured in barrels for 8 years.

The evidence, however, showed that there was no “Mill Wood Distilling Company” in Kentucky or elsewhere, that the whiskey was a blend, that it was not handmade, sour mash or made by the fire copper process, that it was not made from the carefully selected grain, that it was not aged for 8 years, and that no such distillery existed as shown in the picture on the label.  The court ruled that Harper used this false label “to mislead the public into the belief that in purchasing the ‘Mill Wood’ brand of whisky they were purchasing [Mellwood] whisky,” and it issued an injunction against Harper.

Unfortunately, the Mellwood Distillery was one of the many casualties of Prohibition.  It closed in 1918, reopened after Repeal as General Distilling Company, and continued to produce the Mellwood brand, along with bulk whiskey sales.  After General Distilling closed in the 1960’s, the handful of buildings that survived through Prohibition seem to have been demolished in the 1960’s and 1970’s.  It’s also a shame that there is no good photographic record of the distillery (although I'm continuing to look).  This 1921 picture is described in the U of L archives merely as a stretch of Mellwood Ave. from Frankfort Ave. to Brownsboro Rd., which is precisely the block where the Mellwood Distillery was located, so this must show the distillery property, albeit during Prohibition.

Photograph credit:  Image No. ULPA CS 034548 in the Caufield & Shook Collection, University of Louisville Photographic Archives, Louisville, Kentucky, accessed at:

Additionally, this 1936 picture is described by the U of L archives simply as an “Alley between Mellwood & William,” without noting that it appears to also show the back side of the Mellwood Distillery (by then General Distilling) property:

Photograph credit:  Image No. ULPA MSD.092.007 in the Metropolitan Sewer District collection, University of Louisville Photographic Archives, Louisville, Kentucky, accessed at:

Like the Mellwood Distillery itself, it also appears that part of the legal significance of Mellwood Distilling Co. v. Harper has been forgotten.  Bottles today list fictitious distilleries by using assumed names, which is fine.  But some brands pretend that they distilled the contents.  The latest example might be Duke Bourbon, which claims on its label to be “Distilled By Duke Spirits, Lawrenceburg, Kentucky.”  Duke Spirits claims on its Twitter profile to be “an artisan distiller crafting small batches of superior bourbon…”  However, Duke Spirits is not located in Kentucky, it is not an assumed name of any Kentucky distillery, and the entity is not even registered to do business in Kentucky with the Secretary of State.

Other than coincidentally being in a few pictures, the Mellwood Distillery seems to have been lost to history.  If consumers demand to know the source of their bourbon, Mellwood Distilling Co. v. Harper won’t be lost to history too.

Wednesday, July 16, 2014

Buffalo Trace Private Barrel Selection – Buffalo Trace, Eagle Rare, Weller, Elmer T. Lee and Blanton’s (Whew!)

The rumblings about the demise of the private barrel selection program at Buffalo Trace aren’t quite accurate yet, although it’s certainly true that not all brands are available for private barrels.  Don’t even ask for Weller 12 or Pappy.  But surprisingly, Elmer T. Lee and Blanton’s were in the mix last week when I had the pleasure of giving my 2 cents on the selection of Buffalo Trace, Eagle Rare, Weller Special Reserve, Old Weller Antique, Elmer T. Lee and Blanton’s with the experts at Cork ‘N Bottle (click here for the website) and the Whiskey Barrel Society.

The history at Buffalo Trace is palpable. Distilling on this picturesque site situated on the Kentucky River began as early as 1811.  It moved from a small distillery to an industrial complex when Col. E. H. Taylor, Jr. bought the property in 1870 and christened his distillery the “O.F.C.” (“Old Fire Copper”) Distillery.  Col. Taylor was a titan of bourbon, and during his life he owned interests in other famous distilleries like the Carlisle Distillery (built with his then-partner, George T. Stagg, next to the O.F.C.), the Old Oscar Pepper Distillery (later Labrot & Graham and now Woodford Reserve), the J.S. Taylor Distillery, and the abandoned but recently purchased Old Taylor Distillery.

Our pre-barrel-selection tour included the standard stop inside Warehouse C, built in 1881.  I’ve been on the tour before and heard mostly the same speech, so I started looking at barrel heads and found this one:
Other information on the barrel showed that it was made with mash bill #1 but Fred, our tour guide, didn’t know what this was, and Buffalo Trace hasn’t responded to my inquiries.

We also saw a new version of “O.F.C.” aging, which is made with a new recipe using white corn, which was reported to have been the way Col. Taylor did it.
Our walk through the Albert B. Blanton Bottling Hall whetted my appetite even more.  They just so happened to be bottling the upcoming edition of the Buffalo Trace Antique Collection George T. Stagg, which this year weighs in at 138.1 proof.  I’ve never seen more than two bottles of George T. Stagg in one room, so needless to say, this was pretty awe-inspiring.

Still, of course, the whole point of the trip was to help select barrels, and we had our work cut out for us because Cork ‘N Bottle had thirty-nine to choose from.  The tasting room at Buffalo Trace is located in Warehouse H, which was built in 1934 by then-Master Distiller Col. Albert B. Blanton.  We started with eighteen barrels of Buffalo Trace, from which we selected eight, then moved to selecting four barrels of Eagle Rare.  Then we hit some of my favorites:  We got to pick two out of six barrels of 7½ year-old Weller (one for W.L. Weller Special Reserve and the other for Old Weller Antique; all barrels were about 121 proof), one out of three Elmer T. Lee barrels (9 years old and about 130 proof) and one out of three Blanton’s (6 years old at about 125 proof).  What a day!
I’ve reviewed most of these brands, but never the namesake brand, so this is the perfect opportunity to review the standard variety of Buffalo Trace bourbon available everywhere.  Buffalo Trace bourbon uses the distillery’s mash bill #1, which is shared with Eagle Rare, the E.H. Taylor, Jr. collection, the George T. Stagg collection, Old Charter, and Benchmark.  This is the “low-rye” mash bill, which is estimated to contain only about 10% rye grain.  Even Buffalo Trace’s “high-rye” mash bill is not particularly high, reportedly with only about 15% rye grain.

Bourbon:        Buffalo Trace Kentucky Straight Bourbon Whiskey

Distillery:        Buffalo Trace, Frankfort, Kentucky

Age:                NAS (Buffalo Trace tells me 8-9 years though)

Proof:             90 proof

Cost:               $23.99

Nice traditional amber.

The primary scents are vanilla, corn, with just a bit of leather and mint, and not much oak to speak of.  Overall it has a pleasant nose, although not the most intriguing, and more alcohol smell than I expected for the proof.

The taste starts with corn, brown sugar and a little toffee, and quickly moves to spice, before giving hints of toast and oak.  There seems to be a bit of dark fruits, but it’s very subdued.  A little water goes a long way and probably removes too much of the spice.

The finish is medium in length with slight bitterness that I didn’t expect, but mostly licorice, rye spice and oak.

Bottom Line:

While I certainly like it, Buffalo Trace bourbon has never been my personal favorite, and except for George T. Stagg, I’m generally more a fan of the mash bill #2 bourbons.  Still, there is no denying that Buffalo Trace is a great mid entry-level buy, and it’s heads and shoulders above many of its competitors.  I’ll definitely get the Cork ‘N Bottle private barrel bottling in the fall, but frankly I’m more excited about the Old Weller Antique, Elmer T. Lee and Blanton’s private barrels.

Score on The Sipp’n Corn Scale:    3.0

The Sipp’n Corn Scale™:
1 – Wouldn’t even accept a free drink of it.
2 – Would gladly drink it if someone else was buying.
3 – Glad to include this in my bar.
4 – Excellent bourbon.  Worth the price and I’m sure to always have it in my bar.
5 – Wow.  I’ll search high and low to get another bottle of this.

Wednesday, July 9, 2014

The Duke v. Duke University – and what’s Wild Turkey got to do with this?

Last week John Wayne Enterprises, LLC sued Duke University over the use of John Wayne’s nickname, “Duke.”  In February 2013 John Wayne Enterprises filed a trademark application to register the mark “Duke” for use with alcoholic beverages except beer.  Duke University filed an objection to this and other uses of “Duke,” claiming that it would cause confusion and dilute and tarnish Duke University’s trademark.  The Complaint calls Duke University’s position “ludicrous.”  Remember folks, Complaints only tell one side of the story.

Here’s an image of the planned 88-proof Kentucky Straight Bourbon Whiskey provided to the Court:

And Click here to view a copy of the entire Complaint.

Comment below or on Twitter on whether you think “Duke” should be allowed as a bourbon brand.  In the meantime, I’m looking into why “Duke Spirits” is not registered to do business with the Kentucky Secretary of State and into the statement on the back label that Duke Bourbon has been crafted in collaboration with Jimmy and Eddie Russell (without mentioning Wild Turkey).

Thursday, July 3, 2014

James E. Pepper’s Fraud Previews The Taft Decision.

There’s a rule in the law that when you ask for an injunction, you can’t have been a bad guy too.  In 1893 when James E. Pepper tried to protect his “Old Pepper” brand, he learned this rule the hard way.

The events described in Krauss v. Jos. R. Peebles’ Sons Co., 58 F. 585 (S.D. Ohio 1893) all take place after James Pepper went bankrupt in 1877 and lost his father’s distillery in Versailles, Kentucky – the famed “Old Oscar Pepper Distillery” where Old Crow was born – to Labrot & Graham.  They also take place after Pepper unsuccessfully sued Labrot & Graham (here’s my Pepper v. Labrot & Graham post).

After losing his father’s distillery and losing the right to use the “Old Oscar Pepper” name, James Pepper built a new distillery in Lexington, Kentucky.  He started distilling there in May 1880 and designed this new shield trademark, which he printed on gold paper for labels:

As many new whiskey distillers know, starting a new distillery has high front-end expenses with a long wait before any whiskey is fit to sell.  Perhaps to account for this reality, Pepper sold newly-filled barrels to the Jos. R. Peebles’ Sons Co., a large Cincinnati grocer and liquor dealer, for aging and bottling, and kept other barrels in his own warehouse.

Then, after six years of aging, Pepper was ready to sell his first run of bourbon in 1886.  Peebles was also selling (and had been selling) this bourbon under the “Old Pepper” brand, but after Pepper got into the bottling business, he supplied the gold shield labels to Peebles and other bottlers.  Pepper also continued bulk barrel sales to Peebles after 1886, through 1893, when Pepper decided make Otto Krauss his sole distributor, and contracted with Kraus to sell him 30,000 cases per year, plus 1,000 barrels of bourbon and 500 barrels of rye per year.

Peebles still had a large supply of Old Pepper bourbon, so it continued to bottle and sell it, using the same labeling it had always used.  Krauss took exception (and I’ve read separately that James Pepper was a silent partner with Krauss), and sued Peebles in the spring of 1893, asking for an injunction to prohibit Peebles from labeling its bottles as “Old Pepper.”

The judge for the case was none other than William Howard Taft, Sixth Circuit Judge from 1892-1900, before his single term as President (1908 – 1912) and eventual service as United States Supreme Court Chief Justice (1921 – 1930).  Whiskey fans most likely know him as President Taft for his “Taft Decision” in 1909, which clarified the Pure Food & Drug Act and finally answered the question “What is whiskey?” by defining “straight,” “blended” and “imitation” whiskey.

Circuit Judge Taft found some disturbing evidence in the case that might have influenced his “Taft Decision” as President 16 years later.  Evidence was presented showing, despite Pepper’s labels and guarantees to the public, that at least since December 1891 he had been buying bourbon from other distilleries and blending it with his own bourbon – all the while still guaranteeing to the public that it was distilled by him, as genuine and unadulterated Old Pepper.

The percentages varied each month, but Judge Taft recited the exact percentage of “foreign” whiskey that Pepper blended into his bottles of Old Pepper on a monthly basis over the course of 19 months.  It was often over 50% foreign whiskey, with a high of 66% foreign whiskey in one month, and an average of over 1/3 of every bottle being foreign whiskey over that period.  Judge Taft took Pepper and Krauss to task.  He recited all of the express guarantees contained all over the Old Pepper label that it was pure, unmixed with other whiskey, that the bottle contained nothing but Old Pepper bourbon distilled at the James E. Pepper Distillery in Lexington, by James Pepper himself.  Judge Taft ruled that this was “a false representation, and a fraud upon the purchasing public,” and “the public are entitled to a true statement as to the origin of the whisky, if any statement is made at all.”

So Krauss and Pepper could not stop Peebles from using the Old Pepper trademarks because Krauss and Pepper were themselves engaged in fraud.  I’d be willing to bet that this 1893 decision influenced President Taft in 1909 when he defined the standards for labeling whiskey.  In fact, in 1909 President Taft wrote that through his decision, “the public will be made to know exactly the kind of whisky they buy and drink…”  That’s an admirable goal that we’re still working toward today, as we’re faced with similar resistance from a few producers and non-distiller producers, along with sometimes lax enforcement of existing laws by TTB.  James Pepper might have fared better today with TTB than he did in 1893 against Taft.

Sunday, June 29, 2014

Sipp’n Corn Bourbon Review – Elijah Craig 12 Year Barrel Proof – Three Editions

It’s no secret that Elijah Craig 12-Year is one of the best values of all of bourbons (usually under $30.00).  Heaven Hill has taken its popular Elijah Craig 12-Year bourbon to new heights with small batch barrel proof editions.  This review compares the Evan Williams Bourbon Experience gift shop edition (129.7 Proof; the only white label), with the third edition (133.2 Proof; brown label) and the just-released fifth edition (134.8 proof; brown label).  Look for the latest edition at your favorite retail stores because the price is a bit higher at the Bourbon Experience ($40 range at retail vs. $55 at the Bourbon Experience) and, unfortunately, I’ve confirmed with the Bourbon Experience that they’re out.  Wherever these land, they’ll be gone in a heartbeat.

The Elijah Craig 12-Year Barrel Proof batches have all forgone chill filtering, which contributes to the dark brown color and leaves more flavors behind, but which also results in a slight cloudiness when water is added.  Chill filtering involves chilling the whiskey significantly, so fatty acids and proteins created during distillation can be filtered out, thus removing cloudiness in the bottle.  I understand this is done for mostly cosmetic reasons. 

Elijah Craig 12 Year Barrel Proof – 129.7 Proof ($54.99 – Bourbon Experience price)

I reviewed this edition of EC12 against other high-proof options last December ("The High Octane Challenge").  The color is outright mahogany brown.  On re-taste, the nose is more complex than the other two, blending caramel, oak and apple, with only a slight burn from the high proof.   The taste is really remarkable, with more sweetness of caramel, vanilla and butterscotch, along with pepper and cinnamon spice and hints of oak and almonds, with some slight dark chocolate bitterness.  The finish featured these same flavors too, along with a hint of mint, and it was really long and warm.

Elijah Craig 12 Year Barrel Proof – 133.2 Proof ($54.99 – Bourbon Experience price)

The winter’s edition seems to be the darkest brown of the three.  The nose has deep oak and leather notes, along with brown sugar.  The initial taste gave the strongest and hottest bite out of the three, even though it’s not the highest proof (but show me someone who can distinguish 134.8 proof from 133.2 proof…).  Remember, the ABV calculates to 66.6, so maybe it’s just the power of suggestion.  In addition to the heat, this edition seems to be the spiciest, but after a splash of water, sweet flavors opened up, but it’s still dark cherries, nuts, oak and deep earthy flavors.  This one had the longest finish of the three.

Elijah Craig 12 Year Barrel Proof – 134.8 Proof ($54.99 – Bourbon Experience price)

Dark brown color?  Check.  This edition has the hottest nose, so seriously, don’t inhale too intensely before you add water.  Water removes the sting and opens up balanced caramel, oak and pepper.  The taste balanced those same flavors with an incredibly robust blast.  Try this one with different amounts of water and you’ll see definite changes in flavor profile, bringing out some vanilla, toast and dark fruit flavors.  The finish was long like the others, but probably better balanced than the third edition.

Bottom Line:

I’ve also tried the first release (a 134.2 proof gem) shared by a friend.  Like the editions that followed, it was tremendous, and had slightly different flavors like caramel apple and cinnamon crumb cake.  But out of all that I’ve tried, the 129.7 proof white label expression nudged out its higher-proof brothers.  Each of these editions has its own distinct characteristics, but of course they also have a lot of similarities.  After all, they’re all Elijah Craig, they’re all 12 years old, and they’re all relatively close in time on distillation (and therefore aging seasons).  I would expect future editions to have a little more variation from these three since those barrels will have experienced different aging seasons. 

In addition to all being excellent, one of the most surprising features to me is the drinkability at such a high proof.  Don’t drink a whole glass neat, but definitely try it for the full experience, and also enjoy what a Glencairn or NEAT glass can do for the nose (although the nose is astounding even without a special glass).  Then you’ll want to use ice and a splash of water to lower the proof, but be careful to not go anywhere near the standard 94 proof.

Score on The Sipp’n Corn Scale:
EC12 – 129.7 Proof:  4.5
EC12 – 133.2 Proof:  4.0
EC12 – 134.8 Proof:  4.25

The Sipp’n Corn Scale™:
1 – Wouldn’t even accept a free drink of it.
2 – Would gladly drink it if someone else was buying.
3 – Glad to include this in my bar.
4 – Excellent bourbon.  Worth the price and I’m sure to always have it in my bar.
5 – Wow.  I’ll search high and low to get another bottle of this.

Want more information on the non-gift shop Elijah Craig Barrel Proof releases?  Check out this great summary by Bourbonr:  Elijah Craig Barrel Proof Release Cheat Sheet.

Wednesday, June 25, 2014

Sipp’n Corn Bourbon Review – Wild Turkey Diamond Anniversary

Wild Turkey Diamond Anniversary is a commemorative bourbon to honor Jimmy Russell, the longest-serving active Master Distiller in North America.  Jimmy started at Wild Turkey in 1954, and he trained under legends Bill Hughes and Ernest W. Ripy (the son of the original distiller).  Jimmy’s son Eddie is the fourth in a line of family distillers, and he’s been at Wild Turkey since 1981.  Eddie worked with different blends to find the right way to celebrate his father’s 60 years.

Its first public tasting was on April 15 at the official grand opening of Wild Turkey’s new state-of-the-art Visitor Center, and it was released for sale only at the Visitor Center beginning on April 16.  If you can’t make it to Lawrenceburg, be on the lookout for a limited distribution this August.

Bourbon:        Wild Turkey Diamond Anniversary (Limited Edition)

Distillery:        Wild Turkey Distillery, Lawrenceburg, Kentucky

Age:                NAS, but a blend of 13 and 16 year-old barrels

Proof:             91 proof

Cost:               $124.99

Tasting Notes

Light amber and a bit bright.  I was expecting darker given the ages, but I suppose that I’m seeing the result of the lower proof and filtration. 

Sweetness from caramel and honey, along with dry grass, oak, cedar and old barn (but in a good way).

It initially seemed higher proof than it is, but that sensation went away after sitting for 5-10 minutes, and was replaced with a nice, warm sensation.  There was less oak than I expected from the age.  It was creamy with rye spice, subtle sweetness and some citrus.  The citrus gave it lightness that is not typical with Wild Turkey.  Excellent balance.

I thought that I would like it with ice, but didn’t (it muted the flavors).  On my second day of tasting, I tried it with a Whiskey Disks stone, and that was exactly what it needed.  Drink this one neat with your favorite whiskey stone to give it some chill.

The finish was lingering but not long, and it wasn’t particularly warm except on the tongue.  There was more oak in the finish than with most Wild Turkey brands, along with pepper spice balanced with honey.

Bottom Line

Diamond Anniversary is unlike everything else in the Wild Turkey stable.  Some people were expecting a robust powerhouse consistent with the “#NEVERTAMED” reputation that Wild Turkey has earned (or its earlier “Give 'Em The Bird” campaign).  Don’t expect Diamond Anniversary to be as in-your-face as those marketing campaigns or the new custom-built Wild Turkey motorcycle, which was also revealed at the release event:

Kudos to Eddie Russell for giving us something new and distinguishable.  While this difference is bound to throw some people for a loop, can you imagine the criticism if Diamond Anniversary tasted like Russell’s Reserve or Rare Breed?

The price and sub-101 proof are also bound to startle devoted Wild Turkey fans.  On top of that, Diamond Anniversary faces very stiff competition from other recent limited edition and commemorative bottles.  Most recently, Wild Turkey’s Lawrenceburg neighbor, Four Roses, has hit another home run with its 2014 Limited Edition Single Barrel, which is priced about $25 less than Diamond Anniversary, and which is cask strength. 

Given the luck of timing, then, Diamond Anniversary will strike some people as over-priced and under-proofed.  While I admit that 101-proof would have been a nice part of the tribute, 91-proof is perfect for sipping and I’ll trust Eddie Russell any day of the week to add the right amount of water.  There are better bourbons, and some of those cost less money (the price hurts Diamond Anniversary on my scale), but that can’t detract from the merits of Diamond Anniversary and the true master distillers behind it.  This is a one-of-a-kind bourbon with great balance, so it deserves some room on your shelf.

Score on The Sipp’n Corn Scale:  3.5

The Sipp’n Corn Scale™:
1 – Wouldn’t even accept a free drink of it.
2 – Would gladly drink it if someone else was buying.
3 – Glad to include this in my bar.
4 – Excellent bourbon.  Worth the price and I’m sure to always have it in my bar.
5 – Wow.  I’ll search high and low to get another bottle of this.

Tuesday, June 24, 2014

Frazier v. Dowling – The Pre-Prohibition Fight Over Waterfill & Frazier.

Waterfill & Frazier is best known as the bourbon brand that fled to Juarez, Mexico under the leadership of Whiskey Woman Mary Dowling (1859-1930), and which while in Mexico, produced whiskey that made its way back into the States still labeled as “bourbon.”  Mary Dowling is part of the reason why U.S.-based distillers fought for labeling laws and strict limitations on what could be called “bourbon.”

While Mary Dowling had her share of adventures and litigation (bootlegging charges that were only dismissed on appeal because the court reporter had died, tax charges related to her distilleries after Prohibition was enacted, and more), a lawsuit from the 1890’s threatened the very brand of “Waterfill & Frazier.”

As explained in Frazier v. Dowling, 18 Ky. L. Rptr. 1109, 39 S.W. 45 (Ky. 1897), this case involved family drama plus the common theme of bourbon distillers trying to benefit from the established name of another brand.

The Waterfill family had been in the distilling business since the early 1800’s in Tyrone, Kentucky (near Lawrenceburg).  Although William J. Waterfill was involved in other distilleries, including at least one with the Ripy family, the “Waterfill & Frazier Distillery” was founded in 1870 by William Waterfill and R.H. Frazier in Anderson County, Kentucky, with each owning one-half of the distillery.  In 1882, Waterfill sold his interest to Frazier, who continued the business.

But only three years later, R.H. Frazier wanted to sell, so William Waterfill bought back his one-half interest, and partnered with John Dowling (Mary’s husband) to operate the distillery, still known as “Waterfill & Frazier” and still selling “Waterfill & Frazier” bourbon.

R.H. Frazier died soon after and his son, George G. Frazier, perhaps being disappointed in not having inherited the distillery, decided to start his own distillery with James M. Waterfill, a cousin of William Waterfill.  This new distillery was also in Anderson County, Kentucky, and this next generation of the Waterfills and Fraziers began distilling and barreling their own “Waterfill & Frazier” bourbon.

William Waterfill, of course, was still an owner of the original Waterfill & Frazier.  He made clear to brokers that the upstarts could not use the “Waterfill & Frazier” brand, and he expressed his confidence that “any court of jurisdiction will protect us in the right of property in that brand.” 

This brush-back pitch convinced young entrepreneurs to brand their barrels “J.M. Waterfill & Company, Distillers” and to change their advertisements to clarify that their distillery was owned by “G.G. Frazier” and “J.M. Waterfill.”

A few years later, for reasons not disclosed in the opinion, William Waterfill sold his interest to the Dowlings and he then partnered with the younger Waterfill and Frazier.  So the original Waterfill & Frazier Distillery was now owned solely by the Dowlings, with no person named “Waterfill” or “Frazier” associated with the distillery.

In the meantime, the younger Waterfill and Frazier had been unable to sell their whiskey.  But now with the help of William Waterfill, they finally found a broker in Chicago who agreed to buy all of their whiskey – so long as they would label it as “Waterfill & Frazier.”

When the Dowlings learned that the upstarts were going to use the “Waterfill & Frazier” trade name, they sued, seeking an injunction.  The trial court granted the injunction, and the Fraziers and Waterfills appealed.  The Court of Appeals of Kentucky agreed with the trial court, and ruled against the Fraziers and Waterfills, prohibiting them from using their own last names for their whiskey brand because they were trying to deceive the public.

This is one of the first cases that prohibited use of one’s own surname.  It was followed about 50 years later in the Country Distillers case (Country Distillers v. Samuels – the rise of Maker’s Mark ) to prohibit T. William Samuels (Bill, Sr.) from calling his planned new bourbon “Samuels” or “Old Samuels.”  Frazier v. Dowling laid the groundwork for an exception to the rule that people have the undeniable right to use their own name in their own business; they cannot use their own name if it would create market confusion.

Here, not only were the upstarts causing market confusion, but the Court was extremely critical of the new Waterfill & Frazier’s decision to change from a brand that recognized the distinction to one that clearly attempted to benefit from the existing Waterfill & Frazier brand.  So the Dowlings were able to keep the “Waterfill & Frazier” name, Mary Dowling took it with her to Mexico, it survived well past Repeal, and although no longer in production, its name is still owned by Heaven Hill.  Maybe in the midst of the American whiskey craze we’ll see Waterfill & Frazier again.