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Appeals court grants wax seal to Maker’s Mark

Ed Reinke/Associated Press/file 2009

A bottle of Maker’s Mark bourbon was dipped in red wax at the distillery in Loretto, Ky.

LOUISVILLE, Ky. - A rose by any other name may smell as sweet, but an appeals court says a liquor bottle with a red dripping wax seal by any name other than Maker’s Mark would be illegal.

Noting that “all bourbon is whiskey, but not all whiskey is bourbon,’’ an opinion released Wednesday by the Sixth US Circuit Court of Appeals says that only the Kentucky-made bourbon can carry the distinctive bottle topper.

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The decision comes in an appeal brought by London-based Diageo North America and Casa Cuervo of Mexico, which used a dripping red wax seal on special bottles of its Reserva tequila. US District Judge John G. Heyburn II in 2010 granted Maker’s Mark’s request for an injunction stopping other liquor companies from using the seal.

In a 19-page opinion affirming that decision, Judge Boyce F. Martin waxed poetic about the history of Kentucky’s most famous distilled spirit. Martin, who noted at oral arguments in December that “Maker’s Mark is not cheap,’’ displayed a detailed knowledge of the history and manufacture of bourbon, writing that “corn-based mash and aging in charred new oak barrels impart a distinct mellow flavor and caramel color.’’

The Samuels family, which created Maker’s Mark in 1958, trademarked the distinctive seal in 1985.

Diageo said in a statement the company was disappointed with the ruling, but there would be no practical effect because neither Diageo nor Cuervo has used red wax seals since 2004.

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