Maker’s Mark® – the Bourbon in the Red (Trade) Dress – Still Defending the Wax.

Trade dress – a product or product package’s non-functional physical details and design identifies the product's source and sets it apart from others’ products.

I love trade dress. For many companies and their products, it’s a crucial component of their successful marketing and key to maintaining a competitive position. Think McDonald’s Golden Arches. Think “The milk chocolate melts in your mouth, not in your hands” – the candy’s trademark double-M shape began in 1941. Think Yellow Freight, whose ubiquitous trucks are painted Swamp Holy Orange.* In previous Signalwriter posts about trade dress, such as here, I haven’t much changed my position over the years.

One seven-year-long trade dress war ended in 2010, so everyone thought. Maker’s Mark won an order in 2010 awarding it exclusive rights to the dripping wax seal. Maker’s Mark gained an injunction prohibiting any other company from using a similar seal and look. US District Judge John G Heyburn II said that the bourbon maker held a valid trademark. End of story? Nope.

This past Thursday, the US 6th Circuit Court of Appeals Thursday stepped into the long-running argument over whether Maker’s Mark owner, Beam Inc, can keep the trademark on the wax seal and enforce that injunction stopping any other liquor company from using a similar top.

It’s clear that a lot of people – even many marketers – don’t completely understand the value of trade dress. When Dennis Yang reported in April, 2010, that Judge Heyburn ruled the dripping red wax seal can only be used by Maker’s Mark bourbon, I was fascinated by some of the comments appended to his post.

ElijahBlue: “How many great ideas are abandoned, bursts of inspiration are extinguished because of these abusive (and stupid) copyright, patent and trademark lawsuits?”

Jedidiah: “This sort of BS makes me want to go to my favorite purveyor of strong drink and buy some of this Maker’s Mark crap (never bought it before actually) just so I can have the pleasure of smashing the bottle in protest.”

ABC gum: “Maybe others think wax is a big deal ... I cannot envision why.”

Another forum commenter, Stephen, tells why. Identifying himself as a Maker’s Mark Ambassador, he properly noted:

It’s the basis for their brand’s recognition, like Tiffany blue. A representation of the wax in that particular shade of red adorns all the things they put out, whether it be note cards or golf balls, so that when you see the red wax you think MM. While it’s hardly a novel idea to seal a bottle with wax, the tequila company is clearly trying to glom onto Maker’s Mark’s high-end symbol for their own game, a symbol the bourbon has developed over 50 years.

When clients say they want to be the Mercedes-Benz of their particular industry or – right now – look like Apple, it’s touchy to remind them that many of these highly identifiable companies have spent many years and millions of dollars establishing their trade dress. (Maker’s Mark spends about $22 million annually to market its bourbon whereas would-be infringer Cuervo has spent only about $500,000 of its overall branding budget on the Reserva tequila it was going to “wax.”)

Tamara Miller, an intellectual property lawyer at Leydig, Voit and Mayer, encapsulated the massive value of trade dress in a single paragraph:

When my little boy sees a red box with a girl on it, he knows the “Sun-Maid” raisins he likes are inside. My husband knows that any black, dome-topped grill is a “Weber,” and that the goldfish-shaped crackers in our pantry come from Pepperidge Farm. In order to find my “Cheerios” at the store, I look for the yellow box with the big red heart on it. Without a doubt, my family relies on trade dress to recognize our favorite products, and so do countless consumers every day.

Red wax seal equals Maker’s Mark. This is the business of marketing. Cuervo and brand owner Diageo should spend their time and money on their own creative trade dress. Not stealing someone else’s.

*Yellow has changed its brand to YRC – I understand what economics drove this transformation but regret the passing of a super trade dress. Bottom photo credit: © Shannon Graham.