Design Elements Creating Distinctive Packaging Can Be Protected

In a win for beverage producers and their creative design teams, the Sixth Circuit ruled yesterday that the Maker’s Mark red dripping-wax seal is an extremely strong trademark that deserves protection.

Freeborn & Peters’ own David Ter Molen (who runs the wonderful Food Identity Blog) was quoted in today’s edition of Inside Counsel regarding the decision.

The case revolved around Maker’s Mark’s suit against Casa Cuervo’s use of a red seal on the Reserva De La Familia brand tequila. 

The bottles looked like this:

   

Maker’s Mark sued for an injunction and damages arguing that the seal on Reserva was too close to Maker’s and could confuse customers.  Cuervo countersued seeking to void the trademark that Maker’s had on the red dripping wax seal.  The district court found in favor of Maker’s and the Sixth Circuit affirmed that ruling yesterday.  The opinion can be found here.

According to David:

“This ruling highlights that design elements can be an important (and even iconic) part of a product’s brand image and diligent companies can, through advertising and exclusivity, create protectable trade dress rights in those elements that will be protected by the Courts.   Here, Maker’s Mark succeeded by recognizing the important relationship between its dripping, red wax seal and the public image of its product, and then taking all necessary steps to promote and protect that image.”

He’s entirely right.  A different colored or shaped bottle, a distinctive logo, any design element that you’re using to set yourself apart is part of your property and your brand and you should treat it with the same concern that you do your beverages and your other property.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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