Sazerac Brands, LLC, a Delaware limited liability company; Sazerac Company, Inc., a Louisiana corporation, Plaintiffs-Appellants/Cross-Appellees,
Peristyle, LLC, a Kentucky limited liability company; Peristyle Holdings, LLC, a Kentucky limited liability company, Defendants-Appellees/Cross-Appellants.
Argued: June 7, 2018
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.
Brendan J. Hughes, COOLEY LLP, Washington, D.C., for
F. Haara, TACHAU MEEK PLC, Louisville, Kentucky, for
Brendan J. Hughes, Michael J. Klisch, COOLEY LLP, Washington,
D.C., Scott P. Zoppoth, THE ZOPPOTH LAW FIRM, Louisville,
Kentucky, for Appellants/Cross-Appellees.
F. Haara, Melissa Mahurin Whitehead, Kristin E. McCall,
TACHAU MEEK PLC, Louisville, Kentucky, for
Before: SUTTON, McKEAGUE, and DONALD, Circuit Judges.
SUTTON, CIRCUIT JUDGE.
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.
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
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. § 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 ...