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Friday, December 6, 2013

Kentucky Wasn’t Big Enough for Two Colonel Taylors.


I mentioned earlier that Col. Edmund Haynes (“E. H.”) Taylor, Jr. was one of the most litigious distillers of his era (see http://sippncorn.blogspot.com/2013/10/the-origin-of-col-e-h-taylor-jrs.html).  In addition to his lawsuits, E. H. Taylor was also instrumental in passing the Bottled-In-Bond Act of 1897, meant primarily to protect the public against the “horrors” of whiskey rectifiers.  The act required that any spirit labeled as “Bottled-in-Bond” be the product of one distiller at one distillery during one distillation season, and aged in a federally-bonded warehouse under federal government supervision for at least four years and bottled at 100 proof.

E. H. Taylor also focused his efforts against a prominent Louisville businessman, another Colonel with the same surname, Col. Marion E. Taylor.  E. H. Taylor sued Marion Taylor alleging that Marion Taylor was misrepresenting his blended whiskey as “straight” bourbon whiskey, and that Marion Taylor was trying to defraud the public by using a brand name similar to E. H. Taylor’s bourbon.

Marion Taylor was a well-known Louisville businessman, and his name still fits prominently in downtown Louisville with the Marion E. Taylor Building,


and the Wright & Taylor Building.


Marion Taylor formed Wright & Taylor with John J. Wright in 1886, and together they sold Kentucky Taylor, Pride of Louisville and Cain Spring Whiskey, and by 1892 Wright & Taylor had added Fine Old Kentucky Taylor, which became their most popular brand.  In 1896 Marion Taylor bought and expanded the Old Charter Distillery and brand, which allowed him to distill and sell Old Charter straight bourbon, but he also continued to sell his very popular blended Fine Old Kentucky Taylor brand.

E. H. Taylor’s straight bourbon was the similarly-named “Old Taylor.”  He complained that Marion was creating confusion between the “inferior” blended whiskey and the “superior” (and much more expensive) straight bourbon whiskey.  E. H. Taylor sought an injunction and $100,000.00 in damages (in today’s dollars, about $2.7MM).  The Jefferson County Circuit Court dismissed E. H. Taylor’s claims, finding that Marion Taylor was not infringing on any trademarks, nor unfairly competing.

E. H. Taylor appealed to the Kentucky Court of Appeals, and in E. H. Taylor, Jr. & Sons Co. v. Marion E. Taylor, 27 Ky.L.Rptr., 124 Ky. 173, 85 S.W. 1085 (1905), the court ruled partially in his favor by granting an injunction that required Marion Taylor to specify in advertising that Old Kentucky Taylor was a blended whiskey.  However, Marion Taylor did not have to pay any damages, and he was still allowed to use his brand name.

While the Court’s ultimate ruling might seem might seem like only a slap on the wrist, the Court was more critical of Marion Taylor in explaining the basis for its ruling.  First, the Court noted the difference between blended whiskey and straight bourbon:

Rectified or blended whisky [*the Court used the traditional Scotch spelling throughout its ruling] is known to the trade as “single-stamp whisky,” while bonded whisky is known as “double-stamp goods.”  The proof shows that the rectifiers or blenders take a barrel of whisky, and draw off a large part of it, filling it up with water, and then adding spirits or other chemicals to make it proof, and give it age, bead, etc.  The proof also shows that from 50 to 75 percent of the whisky sold in the United States now is blended whisky, and that a large part of the trade prefer it to the straight goods.  It is a cheaper article, and there is therefore a temptation to simulate the more expensive whisky.

After establishing this distinction and comparing the advertisements used by E. H. Taylor and Marion Taylor, the Court concluded that consumers who were “not familiar with the whisky trade would understand that ‘Old Kentucky Taylor’ was a straight whisky.”  The Court further concluded that Marion Taylor intentionally misled consumers through his advertising by trying to pass off his blended product as E. H. Taylor’s straight bourbon, “which had attained a very high reputation as a pure Kentucky distilled whisky.” 

Marion Taylor’s blended whiskey “was a cheaper article, and could be sold at prices at which [E. H. Taylor] could not afford to sell his whisky,” and because his deceptive advertising could confuse consumers, the Court ruled that Marion Taylor had to be truthful in his advertising:

[Marion Taylor] may properly sell his brand of “Old Kentucky Taylor,” provided he so frames his advertisements as to show that it is a blended whisky, but he cannot be allowed to impose upon the public a cheaper article, and thus deprive [E. H. Taylor] of the fruits of its energy and expenditures by selling his blended whisky under labels or advertisements which conceal the true character of the article, for this would destroy the value of the [E. H. Taylor’s] trade.

In the end, Marion Taylor seems to have complied with the Court’s order, as can be seen by comparing this Wright & Taylor add in the Wine and Spirit Bulletin from May 1, 1904 (before the court’s 1905 ruling):



with this add in the Wine and Spirit Bulletin from June 1, 1906 (after the court’s ruling):



In compliance with the Court’s ruling, Marion Taylor made clear that his Fine Old Kentucky Taylor was a blended whiskey, and distinguished it from his Old Charter brand, which was a straight whiskey.  But E. H. Taylor still couldn’t let go, and in 1913 he published this over-the-top full-page letter in the Pacific Wine, Brewing and Spirit Review (double-click on the letter and enlarge it; it’s a funny read):



In the same edition, E. H. Taylor also published this full-page “Important Notice” which slightly exaggerated the Court’s ruling:



Marion Taylor’s Old Charter Distillery and the Old Charter brand continued to thrive (and E. H. Taylor could have no legitimate complaint about Old Charter), but “Fine Old Kentucky Taylor” has been lost to history, probably due in part to E. H. Taylor’s persistence.  There just wasn’t enough room for two Col. Taylors.


1 comment:

  1. It would be interesting to predict how the case would be decided under the current law.

    ReplyDelete