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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.

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