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