Traditionally, trademarks are brand names, logos, and slogans.  But they can also be shapes (Coke bottle), colors (pink for insulation, purple for sandpaper, and more), sounds (NBC chimes), patterns (Burberry fabric, Yankee pinstripes), and more. A trademark can be anything that distinguishes your brand from competition.

A recent opinion by the United States District Court, in the Western District of Kentucky ruled that the red dripping wax seal used to bottle Maker’s Mark bourbon is a protected trademark. The court issued an injunction barring Cuervo from use of red dripping wax.  “The court considers the red dripping wax seal inherently distinctive, because it is a unique mark used in an unusual way to draw in the consumer,” Judge Heyburn wrote.  The judge got the decision correct in my opinion.  Anything unique to promote and distinguish your brand in the eyes of the consumer is protectable. Consumers familiar with Maker’s Mark, upon walking into a bar and seeing a bottle on the shelf topped with dripped red wax, would be likely to presume that the product came from or are related to Maker’s Mark.

The red dripping wax configuration has been registered to Maker’s Mark parent company since 1985 with the following description of the trademark: THE MARK CONSISTS OF A WAX-LIKE COATING COVERING THE CAP OF THE BOTTLE AND TRICKLING DOWN THE NECK OF THE BOTTLE IN A FREEFORM IRREGULAR PATTERN.  They also have a separate registration covering the color red as applied to the seal on the bottle neck.

Note that it appears from the ruling that Cuervo can use a dripping wax seal so long as it is not red.  Or at least, that issue was not decided in this case.

Many bottles shapes are protected trademarks.  Can you match the registered trademark shape with the brand?

a) b) c) d) e) f) g)

1) ABSOLUT      2) Jack Daniel’s    3) Coca-Cola     4)  Patron    5) Tanquery   6) Crown Royal   7) Tropicana

Lesson: What makes your brand distinct?  Is each distinction protected to provide your brand maximum protection and value?

© 2010 Erik M. Pelton & Associates, PLLC. ALL RIGHTS RESERVED.

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