## Facts

- Maker’s Mark has sold Kentucky bourbon since 1958 using a distinctive red dripping wax seal over the bottle cap, with wax dripping down the neck.
- Maker’s Mark obtained a federal registration in 1985 for the wax trade dress described as a wax-like coating over the cap trickling down the neck in a freeform irregular pattern.
- Maker’s Mark extensively advertised and promoted the red dripping wax seal as a brand identifier, which received broad recognition in media and marketing.
- Jose Cuervo entities produced and Diageo distributed a premium tequila, Reserva de la Familia, some versions of which used a red dripping wax seal with drips down the bottle neck.
- At trial, the parties presented no consumer survey evidence and no concrete instances of actual consumer confusion.

## Issues

1. Whether Maker’s Mark’s red dripping wax seal is functional and therefore invalid as protectable trade dress under the Lanham Act.
2. Whether defendants’ use of a similar red dripping wax seal on tequila created a likelihood of consumer confusion as to source, sponsorship, or affiliation.
3. Whether Maker’s Mark proved federal dilution, and whether a permanent injunction (without damages) was an appropriate remedy.

## Decision

- The Sixth Circuit affirmed the district court after a bench trial.
- The court held Maker’s Mark’s red dripping wax seal is nonfunctional and valid trade dress entitled to protection.
- The court held defendants’ use of a similar red dripping wax on tequila created a likelihood of confusion and therefore infringed Maker’s Mark’s mark.
- The court upheld the finding of no actionable dilution and affirmed a permanent injunction barring future use of a red dripping wax seal on defendants’ tequila products.
- The court affirmed the denial of monetary damages.

## Legal Principles

- Trade dress is functional (and not protectable) if it is essential to the use or purpose of the article or affects the cost or quality of the article; decorative or aesthetic choices are not functional merely because they are attractive.
- Nonfunctionality may be shown where the challenged feature does not improve product performance, reduce cost, or provide a necessary competitive advantage, and where alternative designs can perform any sealing or packaging role.
- Likelihood of confusion is evaluated under the Sixth Circuit’s multi-factor test, with emphasis on overall commercial impression rather than minor differences.
- Proof of actual confusion (including survey evidence) is relevant but not required; the absence of such proof may be neutral, especially where market exposure is limited.
- Permanent injunctive relief is an available remedy for trademark infringement when likely confusion is shown; damages may be denied where the evidentiary record does not support quantification of harm or profits.

## Conclusion

The Sixth Circuit affirmed that Maker’s Mark’s red dripping wax bottle seal is protectable nonfunctional trade dress and that similar red dripping wax used on a competing distilled-spirit product created a likelihood of confusion warranting a permanent injunction, while leaving undisturbed the denial of dilution and monetary relief.


Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., 679 F.3d 410 (6th Cir. 2012)