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Wednesday, August 7, 2013

How Woodford Reserve got to keep the (old) name of its distillery.

The “Labrot & Graham Distillery” is what Brown-Forman called its distillery in Woodford County, Kentucky, when it began producing its popular Woodford Reserve bourbon, although it has since renamed the distillery the “Woodford Reserve Distillery.”  But this relatively quiet name-change 10 years ago stands in stark contrast to naming disputes at the distillery midway through its 200-year history.

Perhaps the most important naming-rights issue involved a contentious lawsuit filed in October 1880 by the grandson of the original owner of the original distillery on the Woodford Reserve property against a partnership between French wine producer Leopold Labrot and Kentucky businessman, James H. Graham.  The ruling from this litigation – issued by a United States Supreme Court Justice – provides an invaluable outline of some of the earliest distilling operations in Kentucky and the perfection of the bourbon distilling process by James Crow.

According to Brown-Forman’s National Historic Landmark Nomination for the “Labrot & Graham’s Old Oscar Pepper Distillery,” it described the property as a “bourbon whiskey manufacturing complex in Woodford County, Kentucky, standing on a site that has been used for the conversion of grain into alcohol since 1812, when Elijah Pepper, a farmer-distiller, established his 350 acre farm.”  The case of Pepper v. Labrot [& Graham], 8 F. 29 (C.C.D. Ky. 1881) traces those early days of the property now known as Woodford Reserve.

Elijah Pepper, a Virginian who moved to Kentucky around 1797, established his first distillery behind the Woodford County Courthouse in Versailles around 1810.  By 1812, however, Elijah Pepper had acquired hundreds of acres along Glenn’s Creek, where he built his homestead, a grist mill and distillery, and where he established his family farm.  This appears to have been the first distillery on the Woodford Reserve property.

Elijah Pepper died in early 1831 and the distillery was operated by his son, Oscar N. Pepper.  Sometime after Oscar completed a new limestone distillery building in 1838, the distillery became known as the “Old Oscar Pepper Distillery.”  By 1833, and through 1855 (except for two years), Oscar Pepper employed the venerable James Crow as his distiller, and the distillery was renowned for its bourbon and for refining and defining what we know as bourbon today.

James Crow died in April 1856, but because of the fame gained by the Crow brand, “Old Crow” bourbon continued to be produced at the Old Oscar Pepper distillery by W. F. Mitchell, who had worked with and then succeeded James Crow as distiller.

Oscar Pepper died in June 1865, and it appears that the property containing the distillery was transferred by the Estate to Oscar’s youngest of seven children, O’Bannon Pepper.  O’Bannon was still a minor, which meant that Oscar’s wife, Nannie, controlled the distillery.  She leased the distillery property in 1870 to Gaines, Berry & Co. of Frankfort (the “& Co.” was none other than Col. Edmond H. Taylor, Jr.), although James E. Pepper – Oscar’s eldest son – may have managed the distillery.  Gaines, Berry & Co. produced “Old Crow Whiskey,” they called the distillery the “Old Crow Distillery,” and they continued to employ W. F. Mitchell as their distiller.

James Pepper sued his mother in 1872 to gain control of the distillery property, but that is another story for another blog.  James succeeded in taking control of the distillery and then partnered with Col. Taylor, who had separated from Gaines, Berry & Co., to make improvements to the distillery and continue operations.  In 1874 however, Gaines, Berry & Co. appear to have transferred the “Old Crow” trademark to another of their distillery operations, leaving James Pepper’s brand as “Old Oscar Pepper,” also known as “O.O.P.” bourbon.

James experienced financial hardships, and was declared bankrupt in 1877.  Through the bankruptcy, Col. Taylor appears to have taken sole ownership of the Old Oscar Pepper Distillery.  But Col. Taylor – who also owned other distilleries – experienced his own financial ruin shortly thereafter.  This led to the transfer of the Old Oscar Pepper Distillery to George T. Stagg, and finally to Labrot & Graham in 1878.

After his financial fortunes seemed to have reversed (another story for future blogs), James Pepper built a new distillery on Old Frankfort Pike in Lexington, Kentucky.  There, he hoped to continue to trade on his father’s name and the tremendous reputation achieved by his father and James Crow.

Now with his new financial footing, James Pepper took aim at Labrot & Graham, who continued to call his father’s distillery the Old Oscar Pepper Distillery.  James believed that only he should be able to use the “Pepper” name, and in 1880 he filed a lawsuit in federal court to gain back part of what he lost in bankruptcy.

Incidentally, this federal lawsuit between James Pepper and Labrot & Graham was so early in American judicial history that the United States Supreme Court Justices were still responsible for “circuits” throughout the country.  So the judge who presided over the litigation was Justice Thomas Stanley Matthews, who served on the United States Supreme Court from May 12, 1881 to his death in 1889.  Justice Matthews was a Cincinnati native who was first nominated to the Court by his former tent-mate, President (then-Colonel) Rutherford B. Hays, while Matthews served as a Lieutenant Colonel with the 23rd Ohio Infantry of the Union Army.  The Senate did not confirm Justice Matthews until President James A. Garfield re-nominated him, and even then Matthews was only confirmed by a vote of 24 to 23.

After reciting the history of the property and the claims and counter-claims being asserted, Justice Matthews noted and relied upon an advertisement used by James Pepper from the period when he owned the Old Oscar Pepper Distillery.  James touted his bourbon as follows:

Having put the most thorough running order the old distillery premises of my father, the late Oscar Pepper (now owned by me), I offer to the first-class trade of this country a hand-made, sour-mash, pure copper whisky of perfect excellence.  The celebrity attained by the whisky made by my father was ascribable to the excellent water used (a very superior spring), and the grain grown on the farm adjoining by himself, and to the process observed by James Crow, after his death by William F. Mitchell, his distillers.  I am now running the distillery with the same distiller, the same water, the same formulas, and grain grown upon the same farm.

Despite Oscar Pepper’s much earlier ownership of the distillery, James Pepper alleged that “Old Oscar Pepper” had not been used until 1874.  He alleged that the following brand that he burned on barrel heads was his trademark:
  
As might be expected, evidence was presented to the court proving that between 1838 and 1865, while Oscar Pepper operated the distillery, it was already commonly known as the “Oscar Pepper Distillery.”  Additionally, because of the fame of James Crow and his bourbon – known as “Old Crow” – the distillery was also known as the “Old Crow Distillery”, a name that continued in use after James Crow died in 1856 and after Oscar Pepper died in 1865.  Even Gains, Berry & Co. marketed themselves as “Lessees of Oscar Pepper’s ‘Old Crow’ Distillery.”

After James Pepper lost the property, and after the eventual acquisition by Labrot & Graham, Labrot & Graham used a similar trademark, and specifically used the name “Old Oscar Pepper Distillery.”


Labrot & Graham responded to the James Pepper lawsuit by explaining that they were using the name “Old Oscar Pepper Distillery” properly because the distillery they now owned was called the “Old Oscar Pepper Distillery.”  The court posed two questions:  (1) should Labrot & Graham be forced to change the name of a distillery that they purchased and denied the right to call the distillery by its name, and, conversely, (2) should James Pepper be allowed to continue to use the name of his father’s former distillery, when his new bourbon was not distilled there?

As might be expected by the way the court presented these questions, Labrot & Graham won the case.  Justice Matthews ruled that reference to “Old Oscar Pepper Distillery” meant the place of production, and was not a trademark.  Moreover, James Pepper could not truthfully use the phrase since he no longer owned the Old Oscar Pepper Distillery.

Without this ruling from Justice Matthews 132 years ago, the now-faded names etched in limestone at Woodford Reserve – “Old Oscar Pepper Distillery Est. 1838, Labrot & Graham Est. 1878” – might be missing part of history.






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