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Wednesday, February 25, 2015

Copycat Whiskey – the Story of Ezra Brooks and Jack Daniel’s.

Although it was founded in 1866, Jack Daniel’s really figured out marketing in the 1950’s.  Through the investment of $3.5 million dollars over a few years, Jack Daniels increased its sales by a staggering 900% between 1950 and 1956, when it was purchased by Brown-Forman.  The surge in demand actually created a legitimate shortage by 1957, and Jack Daniel’s had to allocate supply.

Kentucky Bourbon producers typically have not missed many opportunities to increase sales (often leading to the lawsuits that I’ve written about), and the high demand and low supply of Jack Daniel’s brought an imitator out from nowhere.  The case of Jack Daniel Distillery, Inc. v. Hoffman Distilling Co., 190 F. Supp. 841 (W.D. Ky. 1960) tells the story of how Frank Silverman created a brand without a distillery in 1957, which he called the “Ezra Brooks Distilling Company.”

Frank sourced Bourbon from the Hoffman Distilling Company in Lawrenceburg, Kentucky (DSP-KY-112), which at the time was still in the famous Ripy family.  Bourbon enthusiasts might recognize the Hoffman Distillery as the early bottling location for Pappy Van Winkle after Julian Van Winkle renamed it “Commonwealth Distillery,” and where other assumed names for bottling purposes have included A.H. Hirsch, Old St. Nick., Michter’s, and Black Maple Hill.

According to the court, Frank also sourced from other distilleries in addition to the Hoffman Distillery, but regardless of where it was sourced, Ezra Brooks was bottled in its early days at the Hoffman Distillery.  Frank was able to get his new brand to market by April 1957, just in time to take advantage of the shortage of Jack Daniel’s.  It was clear to the court that Frank “intentionally copied and imitated the appearance of the well-established and attractive Jack Daniel’s Black Label package and advertising techniques for its new and unknown brand Ezra Brooks.”

Frank didn’t just try to make his new brand look similar to Jack Daniel’s; he went for all-out imitation.  The court described the following ways in which Frank copied Jack Daniel’s:

Jack Daniel’s
Ezra Brooks
Square bottle
Square bottle
Black and white wrap-around label
Black and white wrap-around label
“90 Proof by Choice”
“90 Proof for Character”
Pictures a small old-time distillery
Pictures a small old-time distillery
“Rare Old Sippin’ Whiskey”
“Real Sippin’ Whiskey”
“Charcoal Mellowed Drop by Drop”
“Every Sip is Mellowed ‘Cause Every Drop is Charcoal Filtered”
Small black and white cardboard neckpiece
Small black and white cardboard neckpiece
Advertised that it was in short supply (which was true in 1957):  “There isn’t quite enough to go around.”
Advertised that it was in short supply (which was false in 1957):  “There just ain’t enuf to go around.”

Frank’s lack of originality and misrepresentation to the public about the availability of his new brand were not enough to win the lawsuit for Jack Daniel’s, however.  The court ruled (and it was upheld on appeal) that because Frank used a completely different name for his brand, and because the source – Tennessee vs. Kentucky – was clearly marked on the labels, Jack Daniel’s could not prove that Frank was unfairly competing or attempting to pass off Ezra Brooks as Jack Daniel’s.

Hot of this victory, Frank continued to pretend that Ezra Brooks was in limited supply, as shown in this 1965 ad provided by our friends over at Bourbon & Banter (check out http://www.bourbonbanter.com/ and on Twitter @BourbonBanter):

The Ezra Brooks brand then passed as an assumed name around the industry, including Jim Beam, Julius Wile Sons & Co., Medley Distilling Company, and more recently Luxco, with distillation by Heaven Hill.  Many of the subsequent owners of the brand continued to market Ezra Brooks as a substitute for Jack Daniel’s, as shown in this 1983 ad:
The current website for Ezra Brooks doesn’t focus on Jack Daniel’s, and doesn’t pretend that Ezra Brooks is in short supply, but it still seems to make a few unsupported claims.  For example, the prominent “Seven Generations” claim can’t be true for a brand that was created in 1957. 

The initial involvement of the Hoffman Distillery is ignored, instead claiming that the brand started with Medley in Owensboro.  Additionally, calling 1901 “the beginning of the 19th century” should have been “20th century.”

Then there’s the claim that “Ezra Brooks Distilling Co. was praised by the U.S. Government in 1966 as Kentucky’s Finest Little Distillery.’”

Whatever distillery (or distilleries) Ezra Brooks sourced from in 1966, it clearly was not the large-scale factory operated by Heaven Hill which produces Ezra Brooks today, so the whole “Kentucky’s Finest Little Distillery” bit should be removed from contemporary bottles.  Plus, I could not find any such published “praise.”

While it may be true that “imitation is the sincerest form of flattery,” I don’t blame Jack Daniel’s for not being flattered.  Too many brands with no real history and questionable provenance take roads similar to Frank Silverman.  A Tennessee Whiskey might not be able to win a lawsuit against a Kentucky Bourbon, but consumers can drive change where the courts don’t.

23 comments:

  1. Howdy!

    As long as you're pointing out errors in branding. You should also note that Jack Daniel's distillery (and company) weren't founded until 1875.
    http://en.wikipedia.org/wiki/Jack_Daniel

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    1. Thanks for reading Zeke! I haven't read Peter Krass' book that is referenced in your wikipedia link, but the court's opinion states: "The evidence shows that the Jack Daniel Distillery was founded in 1866 and remained in the family of the founder until sold to Brown-Forman Distillers Corporation in 1956." I'm just reporting what's in the case. But if there's a dispute over 1866 I'll be glad to look into it. Cheers.

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  2. Love the blog. Lots of good info here. I’m a big fan of whiskey as well as coffee. So I started sourcing and aging beans in whiskey barrels. Now I can get the nice finish of whiskey anytime! Would you be interesting in reviewing our coffee beans for your readers? I can get some free samples out to you. Let me know. Great site!
    -John

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    1. Thanks for reading and for great feedback! Coffee done right has so many similarities to Bourbon done right, from finding subtle or distinct flavors, to the ability to drink it black/neat versus changing the flavor profile. So yes, I'd love the opportunity to try the barrel aged beans! Thanks so much. Please email me at sippncorn@gmail.com.

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  3. I drink EB because it's half the price of over-rated JD, has a higher alcohol content, and it's just as good.

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    1. EB in my area of Florida went from 90 proof to 80 proof. I just found some in Pennsylvania in 90 proof. Is the change to 80 proof affecting sales?

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    2. EB has offered both 80 and 90 proof options. It's odd that your local distributor is focusing on just one.

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  4. This is great Bourbon Drama. I think I'll drink to it!

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    1. All the more reason to enjoy it! Cheers!

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  5. Drinking EB 90 right now. A bargain.

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  6. Drinking EB 90 right now. A bargain.

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  7. EB would actually be considered by myself, as one of the least drinkable from Heaven hill that I have found, but perhaps that's because I find Jack undrinkable. So many other good ones out there. Personally am partial to wheat though

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  8. I picked up last night a bottle of Old Ezra, 101 proof, aged seven years, priced $19.99 at Friar Tuck, a chain of nine stores in Illinois and Missouri. This a great bargain, in my opinion. The fine old fashioned I am enjoying at the moment is testament to that. I found your blog while looking for information about Ezra Brooks, who I assumed was a historical character. You answered that question for me. I deplore the sleazy, and dishonest, marketing tactics. But I think this will not be the last bottle of Old Ezra in the cupboard, if it's still available, of course.

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    1. On the plus side, Luxco has changed the EB website and we're not seeing the claims and marketing deception that Frank Silverman used.

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  9. I too was hoping that Ezra Brooks was some kind of heroic personage from the past, but no matter, you can't make a Brooks apple with anything else. That's 1/4 Ezra 90, 1/4 apple cider, a little over a third water, plus one more splash of Ezra 90 on top. Cheers!

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    1. The name "Ezra Brooks" can definitly pass for a distiller from days gone by. Cheers!

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  10. I have a bottle of Ezra B 15 year single barrel...bottled in 2000...do you know where this juice cane from? Near impossible to find info on this....

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    1. There's no way of knowing for sure, and while Luxco has probably sourced from other distilleries too, Heaven Hill seems to be the most populare guess.

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  11. Ah, chicanery and snakeoilsmanship... it's part of our history! :) Strangely I find the modern JD undrinkable and vile (that covers No. 7, Gentleman Jack and Single Barrel) while I thoroughly enjoy Ezra Brooks and Evan Williams Black Label. Aside from the bottles/labels I don't see any similarity to JD. I do love Dickel 12, though :)

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  12. Jack Daniels has and always will be my drink of choice. There are others that I will sample from time to time but I am definitely a proud member of the Jack Daniels inventory reduction crew.

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  13. Great article. I've seen several brands that mimic the iconic JD bottle. Benchmark with their "No. 8" immediately springs to mind. It seems most distilleries have a product aimed squarely at JD drinkers. I recently bought my first bottle of Ezra Brooks 90 and thoroughly enjoyed it.

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