–Dan Kelly, Attorney
Have you ever seen a bottle with a top that resembles this image? Do you associate it with a single source? Do you associate it with a particular product? If so, which source or product? Would you think that the product pictured below comes from the same source?
How about this one? 
These are the basic facts in a lawsuit brought last month by Maker’s Mark Distillery against Jose Cuervo International and related entities. Maker’s Mark owns a federal trademark registration (more than one, actually) on its wax seal for use in connection with whiskey. Jose Cuervo sells the bottles pictured above as part of its Jose Cuervo Reserva de la Familia line of tequilas. While news outlets reported this new case last month, and indeed a new case was filed then, these two parties have been in litigation since 2003 on the same issues. In the 2003 suit, the Cuervo parties have counterclaimed to cancel the Maker’s Mark trademark registration, in part on the basis that the wax seal is functional. The parties are currently briefing a motion for summary judgment brought by the Cuervo parties, so there may be a disposition within the next several months.
It is not presently clear to me how the two lawsuits are related. In any event, these suits, if tried to published decisions, will add a helpful data point to the body of non-traditional trademark law. We’ll keep you posted.