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Friday, October 3, 2014

Col. E. H. Taylor, Jr. Fights for Trademark Protection from Beyond the Grave.

There’s a massive distillery complex that not many people know about near Frankfort, Kentucky, nestled in a scenic bend on the meandering Elkhorn Creek.  It’s closed to visitors and doesn’t distill anymore, but it ages Beam Suntory brands and bottles about 12 million of the approximately 21 million cases produced each year in Kentucky by Beam Suntory.

This hidden distillery – DSP 14, or simply referred to as the “Frankfort Plant” if you dig deep enough on the Beam Suntory website – has distilling history dating back to at least 1901 when R.A. Baker established “The Frankfort Distillery,” extending through to 1940 – 1987 when it was home to Old Grand-Dad.  But it also played a significant role in the development of trademark law and the use of surnames in a case arising out of the attempted revival of a pre-prohibition family name.

The case of National Distillers Products Corp. v. K. Taylor Distilling Co., 31 F. Supp. 611 (E.D. Ky. 1940) tells the story of how Col. E. H. Taylor, Jr. and his sons, Swigert and Kenner, organized “E. H. Taylor, Jr. & Sons” in 1894, and how the “Old Taylor” brand rose to great prominence.  The Court also explained that when Col. Taylor died in 1923, his sons basically wasted no time in selling out to what eventually became part of National Distillers Products Corporation.

As the demise of National Prohibition became more likely, speculators positioned themselves to enter the market.  One of those entrepreneurs was a Lexington, Kentucky attorney, S. S. Yantis, who along with his New York City investment banker relatives, thought the timing was right to invest in a distillery.  Before Repeal, they bought “a former distillery site located near Forks of Elkhorn in Franklin County, Ky. … with the view of promoting an enterprise for the manufacture of whiskey in the event of the repeal of National Prohibition, which seemed impending.”  Four months before Repeal, they formed the “Franklin County Distilling Company” and began preparations at DSP 14.

The Judge noted that the Yantis family was “entirely without previous experience in the distillery business,” so they courted two other prominent former distillers who rejected them, before approaching Kenner Taylor.  In September 1933 Kenner Taylor agreed to become President and CEO of the new company for a five-year term, and he agreed that his name could be used for branding and advertising purposes.

With the instant prestige afforded by Taylor’s participation, in October 1933 the two-month-old company changed its name to “The K. Taylor Distilling Company.”  Repeal came on December 5, 1933, and Taylor left for Florida for his usual winter vacation on December 28.  Taylor returned to Kentucky on April 1, 1934, but he was ill, and he died on June 1, 1934.  While the company never actually distilled any whiskey during Taylor’s brief stint as President, he assisted in launching the “Kenner Taylor” brand using sourced Bourbon.
  

After Taylor’s death, the company ramped up use of the “Taylor” name – but not just “Kenner Taylor.”  Instead, the Court noted that the company advertised by using pictures of E. H. Taylor, Jr., Swigert Taylor and Kenner Taylor, and used the phrase “Taylor-Made Whiskies.”  The Court held that this use infringed on the “Old Taylor” brand because it misled the public into believing that the “K. Taylor” brand was related to “Old Taylor.”  Therefore, the Court prohibited use of the brand name “K. Taylor” or “Kenner Taylor” “unless accompanied by a statement plainly and specifically showing that the defendant is neither the successor to nor connected with the maker of ‘Old Taylor whiskey’ and that its product is ‘not the product of E. H. Taylor, Jr. & Sons, or its successors.’”  This is the same result reached almost a decade later when Bill Samuels, Sr. decided to strike out on his own (Country Distillers v. Samuels – the rise of Maker’s Mark).

The ruling was issued on February 14, 1940, and The K. Taylor Distilling Company fought on by challenging National Distillers in the marketplace.  A mere month after the ruling, in March 1940, the company contracted with a Cincinnati distributor who successfully developed a demand for “K. Taylor, Bottled-in-Bond” and somewhat less demand for a second K. Taylor brand called “The Belle of Franklin.”  (A breach of contract case between that distributor and The K. Taylor Distilling Company ensued, resulting in two interesting decisions that I’ll save for a later post.)

Having won its lawsuit, but seemingly having failed to destroy The K. Taylor Distilling Company, on August 5, 1940 National Distillers bought the upstart distillery along with the K. Taylor brand, which it immediately discontinued.  National Distillers then rechristened the distillery as the Old Grand-Dad Distillery, making one of the most popular brands of the time.  Beam bought National Distillers in 1987 and moved distillation of Old Grand-Dad to Clermont, but retained the Old Grand-Dad distillery for aging and bottling.

 Kenner Taylor might have been forgotten to history due to the litigious spirit of his father and the domination strategies of National Distillers, if it weren’t for the record created by this trademark lawsuit.

3 comments:

  1. I admire the valuable information you offer in your articles. Really useful stuff .Never had an idea about this, will look for more of such informative posts from your side.. Good job...Keep it up

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    Replies
    1. Wow, thanks! Bourbon litigation really helped define the parameters of trademark protection. Glad you're around to help streamline the trademark process for folks!

      Delete
  2. Excellent tips. Really useful stuff .Never had an idea about this, will look for more of such informative posts from your side.. Good job...Keep it up
    trademark attorney

    ReplyDelete