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Sazerac Brands, LLC v. Peristyle, LLC

United States Court of Appeals, Sixth Circuit

June 14, 2018

Sazerac Brands, LLC, a Delaware limited liability company; Sazerac Company, Inc., a Louisiana corporation, Plaintiffs-Appellants/Cross-Appellees,
v.
Peristyle, LLC, a Kentucky limited liability company; Peristyle Holdings, LLC, a Kentucky limited liability company, Defendants-Appellees/Cross-Appellants.

          Argued: June 7, 2018

          Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort. No. 3:15-cv-00076-Gregory F. Van Tatenhove, District Judge.

         ARGUED:

          Brendan J. Hughes, COOLEY LLP, Washington, D.C., for Appellants/Cross-Appellees.

          Brian F. Haara, TACHAU MEEK PLC, Louisville, Kentucky, for Appellees/Cross-Appellants.

         ON BRIEF:

          Brendan J. Hughes, Michael J. Klisch, COOLEY LLP, Washington, D.C., Scott P. Zoppoth, THE ZOPPOTH LAW FIRM, Louisville, Kentucky, for Appellants/Cross-Appellees.

          Brian F. Haara, Melissa Mahurin Whitehead, Kristin E. McCall, TACHAU MEEK PLC, Louisville, Kentucky, for Appellees/Cross-Appellants.

          Before: SUTTON, McKEAGUE, and DONALD, Circuit Judges.

          OPINION

          SUTTON, CIRCUIT JUDGE.

         Colonel Edmund Haynes Taylor, Jr., "the most remarkable man to enter the whiskey industry during the post-Civil War years, " built the Old Taylor Distillery in 1887. Once the "most magnificent plant of its kind in Kentucky, " the distillery fell into disrepair after the Colonel's death. Will Arvin and Wesley Murry sought to turn things around. In 2014, they formed Peristyle to purchase the property, renovate it, and eventually resume bourbon production there. Peristyle regularly referred to its location at "the Former Old Taylor Distillery" or "Old Taylor" during the renovation period.

         That generated heartburn for the next player in our case, Sazerac, a company that bought the trademark rights to "Old Taylor" and "Colonel E.H. Taylor" in 2009. Sazerac objected to Peristyle's use of the Taylor name and sued Peristyle for infringement. Because Peristyle used the Old Taylor name descriptively and in good faith, it finds shelter under the Lanham Act's fair use defense. We affirm.

         I.

         In the inimitable words of our late colleague Boyce Martin: "All bourbon is whiskey, but not all whiskey is bourbon." Maker's Mark Distillery, Inc. v. Diageo N. Am., Inc., 679 F.3d 410, 414 (6th Cir. 2012). Bourbon must be made from a grain mixture that is at least 51% corn. 27 C.F.R. ยง 5.22(b)(1)(i). It must be distilled to no more than 160 proof, barreled at no more than 125 proof, and bottled at no less than 80 ...


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