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.

Dad Drank..?

Beginning December with liquor ads is appropriate: Christmas is just ‘round the corner. The coming season is filled with opportunities to drink, drink, drink. (But, like, you know, do it responsibly.)

I’ve been reminded of two utterly different ad concepts for brown liquors since I ran across them in one issue of a single magazine: One full-page from Knob Creek (top left) and one for Canadian Club (bottom left). The campaigns couldn’t be more different.

Knob Creek’s ads have been praised as highly designed; the look is metro-modern. This small-batch bourbon’s after the upscale drinker, so maybe it’s not twee* to come up with a slogan like “Drink Life Deeply” but it feels that way. I also would have liked to spend more time hanging over a stylish bar drinking a bourbon by myself. I never looked as good as that model right down to the mildly unshaven look.

So I’m probably jealous to prefer the Canadian Club campaign, “Damn Right Your Dad Drank It.”

It’s a masterpiece of subversion and particularly evocative for me. I can see my daddy in the various photographs. Actually, I can see me because that’s the Dad-Gen to which the CC folks are referring.

I’m enjoyed the daylights out of these ads, even though I’m not in the target demographic. Energy BBDO, Chicago, has nailed the thinking, the styling and the concept.

My daddy, BTW, drank Old Overholt and was proud of it. When was the last time you hear anyone drinking rye?

Both campaigns are heavily covered in the trade press and the blogosphere. Steve Hall, tireless marcom observer who runs the AdRants social network, has portrayed both campaigns – you can read about them here and here.

As a final note, Catharine Taylor, blogging on Adverganza, highlighted the Canadian Club campaign, too. She mentioned the politically incorrect nature of the ads – echoed by one anonymous commenter, “Yes, it’s amazing how the ads demean women and exclude minorities at the same time.” Right!

Dear Whoever-You-Are-Anonymous: It’s liquor advertising, dear. Review the marketing brief and lighten up.

*Close enough: “…affectedly or excessively dainty, delicate, cute, or quaint,” Merriam-Webster.com, and appreciation for a job well done to Energy BBDO.

Hoven’s Joke

An old-time Southern, hellfire-and-brimstone country preacher had a teenage son, and it was getting time the boy should give some thought to choosing a profession. Like many young men, the boy didn’t really know what he wanted to do, and he didn’t seem too concerned about it.

One day, while the boy was away at school, his father decided to try an experiment. He went into the boy’s room and placed on his study table four objects: a Bible, a silver dollar, a bottle of Jim Beam whiskey and a Playboy magazine.

“I’ll just hide behind the door,” the old preacher said to himself. “When he comes home from school this afternoon, I’ll see which object he picks up.

“If it’s the Holy Bible, he’s going to be a preacher like me, and what a blessing that would be!

“If he picks up the dollar, he’s going to be a businessman, and that would be okay, too.

“But Lord, if he picks up the bottle, he’s going to be a no-good, low-down drunkard. What a shame that would be! And worst of all.... if he picks up that magazine, he’s gonna be a skirt-chasin’ no-good bum.”

The old man waited anxiously, and soon heard his son’s footsteps as he entered the house whistling and headed for his room. The boy tossed his books on the bed. As he turned to leave the room, he spotted the objects on the table. With curiosity in his eye, he walked over to inspect them.

Finally, he reached out and placed the Bible under his arm. He picked up the silver dollar, flipped it once in the air and dropped it into his pocket. Then he uncorked the bottle and took a big drink while he admired Playboy’s Miss July.

“Lord, have mercy!” the old preacher disgustedly whispered. “He’s gonna be a Congressman!”

There’s no gag like an old one, so thanks to Paul Hoven for this great story; and Wikipedia Commons for the photo.

Old Forester

Is this brand story true? Brown-Forman Distillers Company of Louisville, KY, has been running an advertising campaign for Old Forester, which the company says is “America’s First Bottled Bourbon,” complete with a trademark.

The company has got this story behind the campaign: In 1870, George Garvin Brown, a young pharmaceuticals salesman in Louisville, Kentucky, saw the need for a consistently high-quality whisky that met medicinal standards. With $5,500 in saved and borrowed money, Brown and his half brother started J.T.S. Brown and Bro. They sold Old Forester Bourbon Whisky exclusively in sealed glass bottles to assure its quality.

It’s the kind of classically designed campaign that has come to characterize the upscale liquor market – lots of emphasis on heritage and purity and very nice looking with it. Brown-Forman is working on the brand. But…is the claim factual? I seemed to recall seeing Civil War-era engravings with bottles of bourbon (so labeled) on shelves – that would pre-date the foundation of the Old Forester brand story.

I tried contacting Brown-Forman…got nothing.

Fortunately, the people at my own favorite bourbon company, Jim Beam, were much more attentive. They asked their PR agency to work the problem and I got an outstanding call from Layton Meng, one of the Directors at Qorvis working on the Jim Beam account. (She left a message that I didn’t get immediately, driving through the middle of southern Louisiana’s Atchafalaya Swamp at the time as I was.)

Meng had spoken with Jerry Dalton, Jim Beam’s Master Distiller. His research says that Abram M Bininger & Co. was actually the oldest known source of bottled bourbon: he started doing it in 1848. Nevertheless, it is Brown that’s recognized in the industry for being the first distiller to mass-produce and sell branded bourbon in bottles.

So the answer is, yes…Old Forester is the first bottled bourbon brand. Brown-Forman is correct and the story on the Old Forester website is a good one. (Always tell good stories about your brand.)

For me, though, the stars of this one are Jim Beam and Qorvis – so my special appreciation to Dalton and Meng: more responsive to customers, thank you very much. It’s way early for a drink, but mine will be Jim Beam when the time comes, not Old Forester. Maybe I should have used a photograph of a Beam bourbon bottle instead.