–Dan Kelly, Attorney

Last year, I commented on the ubiquity of blue ovals in branding.  Today, I’m wondering about the BLACK trend in whiskey branding.  Many whiskey distilleries produce BLACK-branded labels:

Of course, some don’t use the word BLACK, but do use black labels:

Even when these companies do not use the word BLACK in a particular brand, it is not difficult to find them in an Internet search using the terms “black label.”

Remarkably, Diageo actually owns the US registered trademark BLACK LABEL for use in connection with scotch whisky, which it uses in the Johnnie Walker line.  While it seems that none of its whiskey competitors use the word mark BLACK LABEL, many of them freely use black labels (obviously), and consumers search for things like “Maker’s Mark Black Label” all the time.  So, while Diageo “owns” the BLACK LABEL trademark, that trademark is not particularly good at identifying Diageo or Johnnie Walker as the source of the BLACK LABEL whisky.