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Whiskey v. Whisky

June 12, 2012

Anyone who has survived a first-year contracts class in law school is probably familiar with Judge Friendly’s opinion in that old chestnut wherein he inquires, “What is chicken?” Well, the Sixth Circuit Court of Appeals just upped the ante on opinions that ponder the nature of victuals. Maker’s Mark Distillery v. Casa Cuervo [PDF] contains an exploration of the question of “What is bourbon?”

All bourbon is whiskey, but not all whiskey is bourbon.

But that’s not all; the whole opinion is filled with a fantastic collection of the law’s best quotations on the meaning of whiskey (even though the case was ostensibly deciding that Maker’s Mark’s wax seal deserves trademark protection against Cuervo’s ripoff red wax seal, the case is much more interesting for its discursive [and not particularly necessary] examination of the entire history of bourbon).

Justice Hugo Black once wrote, “I was brought up to believe that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon.” Dep’t of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 348-49 (1964) (Black, J., dissenting).

That made me wonder which whisk(e)y is more likely to engender litigation. According to LexisNexis, the word “bourbon” appears in 985 federal court cases (161 in conjunction with the word “whiskey”). while the word “scotch” appears in 2,013 federal court cases (but only 1,762 when excluding the word “tape” and only 580 in conjunction with the word “whisky”). Sadly, the search seems to conflate the two spellings, so I am not quite sure which spelling is more frequently employed, but it seems as though Scotch is more likely to start a fight, at least in the courtroom. Perhaps that’s because bourbon has a slightly more genteel pedigree.

“As many counties of Kentucky claim the first production of Bourbon as Greek cities quarrel over the birthplace of Homer.” The generally accepted and oft-repeated story is that “the first Bourbon whiskey . . . made from a mash containing at least fifty percent corn, is usually credited to a Baptist minister, The Reverend Elijah Craig, in 1789, at Georgetown, [Kentucky],” just prior to Kentucky’s joining the Union as a state in 1792. But it is more likely that Kentucky whiskey was first distilled at Fort Harrod, the first permanent European settlement in what is now Kentucky, in 1774. Kentucky’s settlers distilled whiskey using methods similar to those “used in Scotland and Ireland for hundreds of years,” except that Kentucky whiskey was made mostly from corn, a crop unknown to Europeans before Columbus ventured to America. Though “most [American] colonial whiskey was made from rye,” corn was easy to grow in Kentucky soil, and surplus corn was often used to make whiskey. (extensive citations omitted)

Even George Washington distilled rye whiskey on his plantation at Mount Vernon, and was the largest distiller in the country for a while. [Insert “spirit” of 1776 pun here]. But then, whiskey started to evolve. And even though the whole history of bourbon wasn’t strictly necessary for the Sixth Circuit’s decision, the Court built a pretty compelling case for why Cuervo was never going to beat Maker’s Mark because of its central place and importance in American history.

While in the early years “[w]hiskey was whiskey, as everybody knew,” some bourbon distillers began to brand their bourbons to capitalize on the differences between “[g]ood Kentucky Bourbon” and all the rest. Dr. Crow, a Kentuckian by way of Scotland, “insist[ed] upon strict sanitation in his manufacture,” and branded his bourbon with his name; other Kentucky families followed suit in an effort to differentiate their products. Crow’s branding tactics seem to have worked, as his bourbon accumulated prominent fans. For example, bourbon drinker Ulysses S. Grant preferred Old Crow over other bourbons, as did all three of Congress’s “Great Triumvirate,” Henry Clay, John C. Calhoun, and Daniel Webster. (even more citations omitted)

After Prohibition was repealed, the distilled spirits industry consolidated and matured, and bourbon continued to attract notable adherents. Ian Fleming, the writer who created the James Bond character that famously favored martinis, switched from martinis to bourbon as his drink of choice. And Harry S. Truman started his day with a walk followed by “a rubdown, a shot of bourbon, and a light breakfast.”

So, in case you find yourself litigating against bourbon whiskey, you might want to think twice about litigating it in the Sixth Circuit, let alone America. You’re officially on warning, scotch.

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