If you enjoy a drink during the holidays you may find the ongoing trademark dispute between Maker’s Mark bourbon whisky and tequila maker Casa Cuervo particularly interesting.
In a case that is now headed to a United States Federal Appeal Court, Maker’s Mark whisky is claiming infringement of its trademark, namely the wax dripped over its bottle. In Canada this type of trademark is known as a “distinguishing guise”. Normally, a trademark is a two dimensional image, essentially a slogan or a brand name. This contrasts with a distinguishing guise which is essentially a three dimensional trademark. To be registered, a distinguishing guise must distinguish an owner’s services or wares from the wares or services of their competitors. A more commonly known distinguishing guise is the shape of Coca-Cola bottle that many consumers strongly identify with the Coca-Cola Company.
For a more detailed analysis of the case and description of distinguishing guises check out a post from earlier this month by local Ottawa blogger and trademark lawyer Gregory Pang.