Kentucky Court Report – Subscriber Update, Facebook Place and Pinterest Photos of Courthouses.

Of subscribers, FaceBook, and Pinterest:

  1.  We are now have 660 email subscribers. As always, the price is right!  Free.  Would love to have more folks receiving these updates.  Soooooo, please share the word.
  2. We also have a Facebook page where we post the blog pages, plus share whatever legal and legislative news stories I pick up from the readers or my morning read of the Courier-Journal.  A “like” would be appreciated to extend our reach.  Click here for our Facebook link.
  3. I also share many of the photos of the Courthouses, courthouse squares, and judicial centers throughout Kentucky on Pinterest.   Click here for our Pinterest link.

 

New Email Service – Please, please read this.

2014.12.EmailI am now changing my email delivery system from Feedburner to Mail Chimp.  When I start, you should get fewer but more regular and better written emails.  You will also be able to sign up and cancel emails much easier (see box at top right!).

The changeover will be automatic and transparent.

If you want to continue receiving these email, then do nothing.

If you want to stop receiving these emails, then click on the “unsubscribe from list” button on the right top, enter the email address to be removed and voila’ no more emails.

 

 

Photos, Photos, Photos, and I did not get a single one to post.

Boyle County named after Judge John Boyle.  Marker from Court House.  Photo by me.

Boyle County named after Judge John Boyle. Marker from Court House. Photo by me.

I have had a grabber headline at the top of my blog for the past two weeks soliciting some photos from pholks to post.  Vintage photos of lawyers, courts, downtown scenes of another era.  I was hoping for pictures accompanied by a little history and local color from those in the know and maybe with a little first-hand knowledge of events and people.  Even images of the old picture postcards that were so common place at one time.

While waiting, I even shared a few photos of downtown Louisville that were taken either by Diane or myself – mostly around a beautiful spring day when we went about town enjoying  the fresh air, the beautiful blue skys over Louisville, and discussing the grandkids, watching people, and planning on what we will be doing away from the demands of the legal profession for me and the medical profession for her.

Well, no pics, no stories.   So, this Monday, I will follow up my photo series with more pictures from Danville and Boyle County.

But alas,  it is not too late.  If you have a contribution, please share.  I will share a link to your firm web page, and you will share a bit of local lore.   The link will help your web site’s visibility with the search engines, and the simple act of sharing will help raise the image of the bar, the profession, and, of course,  you.

 

Changes Ahead. Action Now Being Taken to Go to the Next Level

Time to quit tinkering.  Time to act on changes that have been ruminating in the recesses of my mind to take this blog, this project, this site to the next level.  I think I am now probably the oldest (by age of blogger and by blog) continuously running blog in the Commonwealth.

Well, it’s time to step up my game, and move up to a sharper, simpler, and more structured blog.

Action Changes Things

The first change was to get a quality theme.  I am now using Michael Hyatt’s “Get Noticed Theme“.  It’s clean, sharp, and designed for getting noticed.  I have been tinkering with this site for the past few months.  It’s really a sweet theme, and I hope I can make it purr.  Some of the problems I was having with my earlier theme was that it was taking a long, long time to do my posts (and I was losing some after much work and much frustration).  Then add long upload times for the user which is the real reason for acting and making changes.  I felt there was bad user interaction with the site, especially with the wait; and worse for me, bad Googling for search engine rankings.  So, time to move on up to the next level.

In addition to this new WordPress them,  I have already been introducing some changes in the manner and method of my blog postings.

  1. The most visible change could be found in the images with each post.  No more canned little screens in red and blue; no more canned stock photos, either (and none of which were entirely consistent with the content of the post on appellate decisions).  My solution was to put my hobby to work by posting photos that I have taken, most of which are law-related.  For example, I just finished a series on Anderson County and one on Bourbon County depicting the court house, views from the court house square, and historical markers.  I also did some quick research and tried to locate famous local lawyers, judges, politicians, or incidents.The Commonwealth of Kentucky is rich in legal history and precedent; and this is my way of sharing some of what I have picked up.  We walk past the court housesteps, rarely noticing the history found on the brass markers posted near the entrance; or the monuments of those who served and died for our freedom.
  2. The other change is a little more substantive.  I have abandoned the simple reiteration of  the various minutes, summaries, arguments, etc., and am now focusing a little more on a story line with highlights of those documents.  Each document from the AOC will still be available in the post for reading directly or downloading for later.   These posts will probably be more easily digested by you and will make it a lot more enjoyable and easier for me since I am way too old to be everyone’s law clerk.   However, my legal background is primarily as a trial lawyer handling over the years injury cases and insurance law, and that my friends will be the focus.  The good news, I would welcome guest posts from those doing workers compensation, family law, criminal law, tech, trials, and more.

Some future changes include finally implementing my podcast, exploring webinars, taking ownership of the email list (rather than rely on the vagaries of Google’s Feedburner), soliciting more written input from the attorneys throughout the Commonwealth, and more.  But this is enough of a teaser for now.

Hope these changes are well-received, especially the photos.  And as always, please feel free to share with me (and the rest of bar) – verdicts, settlements, stories, vintage pictures, and more.   I will always attribute the source and the lawyer (with a thank you and links to  you and your web site).  The links should be a boon to your search engine rankings, and we both receive the benefit of professional credibility.

Michael Stevens

SCOTUS Blog looking for Press Credentials and a Sugar Daddy. For a half a million bucks. Me too!?

Supreme Court of the United States a/k/a SCOTUS

Supreme Court of the United States a/k/a SCOTUS

SCOTUSBlog is not only seeking press credentials but also a buyer.  See. LexBlog post by clicking here.

This blog is well-respected and a valuable tool for the Supreme Court (SCOTUS) practitioner and follower.  However, where is the line drawn between lawyer and journalist, or both?

Well, the blog is looking for press credentials, and now as the funding from Bloomberg of approximately $500,000 per year is about to end, it’s also looking for  buyer.

However, as the news story notes, the SCOTUS Blog may have increased the owner’s visibility and expertise by way of the legal publications and analysis contained in the blog’s posts  and pages for not only the owner but contributors,  it has not been a success as an overt marketing tool of folks seeking to hire that blogger.

Since I have been doing this (Kentucky Court Report)  now for nearly a decade, and at a cost much less than $500,000 per year, I thought the story was intriguing at best and disheartening at worst.  Where is my Bloomberg parachute?  Heck, would they pay me just just half that much to keep my little enterprise running?

I am much more efficient, costing me under $500 per year in domain name, site hosting, and WordPress themes and plug-ins.  I save nearly $499,500 by doing all the IT work, writing, photographs, editorializing, and philosophizing.

Well, as this frog dreams of being a king, the blog keeps on going.

Hope you have enjoyed the weekly COA minutes, monthly SCOKY minutes, the occasional video of SCOKY arguments, the discretionary review grants (with links to SC case info, COA case info and decision – my touch),  and the monthly summaries;  all of which are complimentary “borrowings” from our friends at the AOC.

I have added my own twists to the discretionary review grants, and one day (with the cooperation of our AOC friends would like to see a separate blog page for each discretionary review grant containing links to the case information at SC and COA and  the underlying COA decision.  Imagine the utility of the page also containing a link to the COA and SC oral arguments, the COA and the SC briefs, the Statement of Appeal, motions, post-decision audio interviews with the attorneys, underlying case verdict and instructions.  Imagine much of the writing by the attorneys themselves with links to their own web sites for marketing purposes (not to mention search engine optimization for their sites and this one — hoorah!).

Oh well, I digress.  I have a dream for the utility of the site.

I have the technology, but not the time or the money

“All bourbon is whiskey, but not all whiskey is bourbon”, then time for a history lesson for those not familiar with Kentucky Bourbon.

A little taste of bourbon history a la Judge Boyce Martin and Maker’s Mark Distiller v. Diageo N. Am., 5/9/2012.

I thought this might be an appropriate legal discussion on the eve of Judge Martin’s retirement, and although Judge Martin was able to hide his bourbon preference, I am more than happy to share mine.  For years, I enjoyed the taste of Woodford Reserve, but a few years back my neighbor Jack Rutledge enlightened me of the finer qualities of Jim Beam’s Four Roses and his brother Jim Rutledge who was their master distiller.  Yes, I have seen the light, and soft golden light looking through the pane of Four Roses.  Good stuff, and I do enjoy a taste with Coke ™ and ice just to push Jack a bit over the edge.

And now for a judicial opinion on the taste that made Kentucky famous:

Maker's Mark and a Dip in Red Wax

Maker’s Mark and a Dip in Red Wax

BOYCE F. MARTIN, JR., Circuit Judge. Justice Hugo Black once wrote, “I was brought up to believe that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon.” Dep’t of Revenue v. James B. Beam Distilling Co. , 377 U.S. 341, 348-49 (1964) (Black, J., dissenting). While there may be some truth to Justice Black’s statement that paints Kentucky bourbon as such an economic force that its competitors need government protection or preference to compete with it, it does not mean a Kentucky bourbon distiller may not also avail itself of our laws to protect its assets. This brings us to the question before us today: whether the bourbon producer Maker’s Mark Distillery, Inc.’s registered trademark consisting of its signature trade dress element—a red dripping wax seal—is due protection, in the form of an injunction, from a similar trade dress element on Casa Cuervo, S.A. de C.V.’s Reserva de la Familia tequila bottles. We hold that it is. The judgments of the district court in this trademark infringement case are AFFIRMED .

I.

Four Roses

Four Roses

All bourbon is whiskey, but not all whiskey is bourbon.1 Whiskey, like other distilled spirits, begins as a fermentable mash, composed of water and grains or other fermentable ingredients. The mash is heated and then cooled, yeast is introduced to ferment the sugars in the mash, and the yeast turns the sugars into alcohol and carbon dioxide. This now-alcoholic liquid is then distilled to concentrate the alcohol. Gary Regan & Mardee Haidin Regan, The Bourbon Companion 32-33 (1998). The composition of the mash, and the aging, treating, and flavoring of the distilled alcohol, determine the flavor, color, and character of the distilled spirit. In the case of bourbon, the corn-based mash  [415]  and aging in charred new oak barrels impart a distinct mellow flavor and caramel color. Distillers compete intensely on flavor, but also through branding and marketing; the history of bourbon, in particular, illustrates why strong branding and differentiation is important in the distilled spirits market.

The legend of the birth of bourbon is not without controversy: “As many counties of Kentucky claim the first production of Bourbon as Greek cities quarrel over the birthplace of Homer.” H.F. Willkie, Beverage Spirits in America—A Brief History 19 (3d ed. 1949). The generally accepted and oft-repeated story is that “the first Bourbon whiskey . . . made from a mash containing at least fifty percent corn, is usually credited to a Baptist minister, The Reverend Elijah Craig, in 1789, at Georgetown, [Kentucky],” just prior to Kentucky’s joining the Union as a state in 1792. Id. But it is more likely that Kentucky whiskey was first distilled at Fort Harrod, the first permanent European settlement in what is now Kentucky, in 1774. Charles K. Cowdery, Bourbon, Straight: The Uncut and Unfiltered Story of American Whiskey 3-4 (2004); accord Willkie, supra, at 19. Kentucky’s settlers distilled whiskey using methods similar to those “used in Scotland and Ireland for hundreds of years,” Willkie, supra, at 20, except that Kentucky whiskey was made mostly from corn, a crop unknown to Europeans before Columbus ventured to America. Cowdery, Bourbon, Straight, supra, at 2. Though “most [American] colonial whiskey was made from rye,” id. at 3, corn was easy to grow in Kentuckysoil, and surplus corn was often used to make whiskey. Id. at 4.

Four Roses

Four Roses

The name “bourbon” itself is easier to trace: one of the original nine counties of Kentucky was Bourbon County, Willkie, supra, at 20, named in honor of the French royal family. Charles K. Cowdery, How Bourbon Whiskey Really Got Its Famous Name, Bourbon Country Reader, July 1996. “[Kentucky] whiskey was shipped from Limestone, a riverside port in Bourbon County,” down the Ohio river to the Mississippi, bound for New Orleans. Regan & Regan, supra, at 14. Whiskey shipped from the port in Bourbon County came to be known as “Old Bourbon,” and later, simply “Bourbon,” to distinguish it from Pennsylvania Rye or other whiskeys. Cowdery, How Bourbon Whiskey Really Got Its Famous Name, supra. The name “bourbon” at that time meant whiskey made from mostly corn in Kentucky or points west. But it was likely not until “sometime between 1823 and . . . 1845” that Dr. James Crow “perfect[ed] the sour-mash method of whiskey-making”—the dominant process in use today that, when coupled with aging in charred new oak barrels, produces modern bourbon’s familiar caramel color and distinctive taste. Regan & Regan, supra, at 15.

While in the early years “[w]hiskey was whiskey, as everybody knew,” some bourbon distillers began to brand their bourbons to capitalize on the differences between “[g]oodKentucky Bourbon” and all the rest. Willkie, supra, at 22. Dr. Crow, a Kentuckian by way of Scotland, “insist[ed] upon strict sanitation in his manufacture,” and branded his bourbon with his name; other Kentucky families followed suit in an effort to differentiate their products. Id. Crow’s branding tactics seem to have worked, as his bourbon accumulated prominent fans. For example, bourbon drinker Ulysses S. Grant preferred Old Crow over other bourbons, Julia Reed, Bourbon’s Beauty, Newsweek, Dec. 21, 2008, as did all three of Congress’s “Great Triumvirate,” Henry Clay, John C. Calhoun, and Daniel Webster. Gerald Carson & Mike Veach, The Social History of Bourbon 47 (2010).

[416]  Success attracts imitators, and in the late nineteenth century “rectifiers” began to crowd the market, selling “a product that they would call ‘Kentucky Bourbon’ using neutral spirits, flavoring agents and artificial coloring with only some aged whiskey in the product.” Mike Veach, The Taft Decision, The Filson, Winter 2009, at 4. A hotly contested legal and lobbying war between the rectifiers and traditional “straight whiskey” distillers erupted, culminating in President William Taft’s official interpretation, in 1909, of the 1906 Pure Food and Drug Act; Taft’s interpretation settled the question of what spirits could be labeled as “whiskey.” Id. The rectifiers lost and were required to label their product “imitation whiskey.” See id.; see also H. Parker Willis, What Whiskey Is, McClure’s Magazine, 1909-10, at 687-903. The ruling only increased distillers’ incentives to differentiate themselves and their products. “Before the Taft ruling, few brands were nationally known . . . . But, under the new regulations, labels had to tell both the process and materials of manufacture. Whiskey . . . now began to appear under distinctive labels, competing with other brands on its own merits.” Willkie, supra, at 26. After Prohibition was repealed, the distilled spirits industry consolidated and matured, id. at 27, and bourbon continued to attract notable adherents. Ian Fleming, the writer who created the James Bond character that famously favored martinis, switched from martinis to bourbon as his drink of choice. John Pearson, Rough Rise of a Dream Hero, Life, Oct. 14, 1966, at 113, 126. And Harry S. Truman started his day with a walk followed by “a rubdown, a shot of bourbon, and a light breakfast.” Univ. of Va. Miller Cntr., Harry S. Truman: Family Life, http://millercenter.org/president/truman/essays/biography/7.

In recognition of bourbon’s unique place in American culture and commerce, and in the spirit of the Taft decision, Congress in 1964 designated bourbon as a “distinctive product[] of the United States,” 27 C.F.R. § 5.22(l)(1), and prescribed restrictions on which distilled spirits may bear the label “bourbon.” Federal regulations require that bourbon whiskey to, among other things, be aged in charred new oak barrels, contain certain proportions of mash ingredients, and be barreled and bottled at certain proofs. § 5.22(b). Importantly, whiskey made for consumption within the United States cannot be called bourbon unless it is made in the United States. § 5.22(l)(1). While bourbon is strongly associated with Kentucky, and while “[ninety-five] percent of the world’s supply of bourbon comes from Kentucky,” Jessie Halladay, Kentucky’s Libation Vacations, Courier-J., Feb. 26, 2012, at D1, some notable bourbons are made in other states.2

Maker’s Mark occupies a central place in the modern story of bourbon. The Samuels family, founder of the Maker’s Mark distillery in Loretto, Kentucky, has produced whiskey in Kentucky nearly continuously from the eighteenth century through today. Regan & Regan, supra, at 161-62. Indeed, Robert Samuels (along with Jacob Beam, Basil Hayden, and Daniel Weller, all of whose surnames are familiar to bourbon connoisseurs) was one of Kentucky’s early settlers. Cowdery, Bourbon, Straight, supra, at 4. Bill Samuels, Sr. formulated the recipe for Maker’s Mark bourbon in 1953. His wife, Margie, conceived of the red dripping wax seal and used the family deep fryer to perfect the process of applying it. The company has  [417]  bottled bourbon for commercial sale under the Maker’s Mark name, and has used a red dripping wax seal on its Maker’s Mark bourbon bottles, since 1958. Maker’s Mark, and craft bourbon generally, garnered national attention when the Wall Street Journal published a front-page article about the bourbon, the red dripping wax seal, and the family behind it. David P. Garino, Maker’s Mark Goes Against the Grain to Make its Mark, Wall St. J., Aug. 1, 1980, at 1. In 1985, Maker’s Mark registered a trademark for the dripping-wax-seal element of its trade dress, which it described as a “wax-like coating covering the cap of the bottle and trickling down the neck of the bottle in a freeform irregular pattern.” The trademark is silent as to color, but Maker’s Mark conceded in submissions before the district court that it sought only to enforce it as applied to the red dripping wax seal.

Jose Cuervo produced a premium tequila, “Reserva de la Familia,” beginning in 1995. The tequila bottle had a wax seal that was straight-edged and did not initially feature drips. By 2001, Cuervo had begun selling this tequila in the United States in bottles with a red dripping wax seal reminiscent of the Maker’s Mark red dripping wax seal. In 2003, Maker’s Mark instituted this suit against Casa Cuervo S.A. de C.V., Jose Cuervo International, Inc., Tequila Cuervo La Rojeña S.A. de C.V., and Diageo North America, Inc. claiming state and federal trademark infringement and federal trademark dilution; sometime thereafter, Cuervo discontinued use of the red dripping wax seal and reverted to a red straight-edged wax seal. In its suit, Maker’s Mark sought damages, injunctions against dilution and infringement, and costs. Cuervo counterclaimed for cancellation of the Maker’s Mark trademark.

After a six-day bench trial, the district court found that Maker’s Mark’s red dripping wax seal is a valid trademark and that Cuervo had infringed that trademark. Based on those findings, the district court enjoined Cuervo permanently “from using red dripping wax on the cap of a bottle in the sale, offering for sale, distribution or advertising of Cuervo tequila products at any locality within the United States.” The district court found that Cuervo had not diluted the mark and denied Maker’s Mark’s claim for damages; the district court also denied Cuervo’s counterclaim for cancellation of the mark. In a separate opinion, the district court awarded Maker’s Mark some of its costs.

Cuervo appeals the district court’s determination that the red dripping wax seal is not aesthetically functional, some of the district court’s factual findings, its balancing of those findings in determining Cuervo had infringed, and its award of some of Maker’s Mark’s costs. Cuervo does not appeal the scope of the injunction.

Download (PDF, 61KB)

Blog Update: I’m NOT behind! Just waitin’ for the AOC. Whither they post it; I will follow.

  There are five major areas that I blog on:

  1. Minutes (Supreme Court and Court of Appeals)
  2. Monthly Summaries of Published Decisions (Supreme Court and Court of Appeals)
  3. Argument Calendars (Supreme Court and Court of Appeals)
  4. Discretionary Review (Supreme Court only)

I am caught up on the minutes with June the last from the Supreme Court, and just last week for the Court of Appeals.

The monthly summaries are also current.  However, the last post monthly summaries for the Court of Appeals is Feb 2013 and the Supreme Court is April 2013 – I am current on both.

The argument calendar:  No arguments for Supreme Court for July; and Court of Appeals for July is posted.

Discretionary reviews:  I publish those when the SCOKY minutes are published and they are current through June 2013.  BTW.  I hope you enjoy the new format which includes the COA decision link (to PDF);  the Court of Appeals and Supreme Court case information.  I have not started updating the post for the published decision.

Attorney disciplinary matters:  I post these when the Supreme Court posts its summaries.

And, there you have the method to the madness. Lot of this is automatic and follows the AOC lead.

I post my own commentary to torts, insurance, civil procedure decisions; news articles; and selected cases for my “Cause of Action” and “Tort/Negligence” topics.

Now my “Tort Report” is running slow, and when I have the May COAKY decisions posted (May 31), then I will simply do a quick post of the tort, insurance, civil pro cases on a monthly basis.  I guess I am behind.  Go figure.

 

Catch up is now all caught up with minutes, summaries, arguments, and discretionary review grants. Thanks for your patience.

Making the Climb Out of the Hole.

Making the Climb Out of the Hole.

Hoorah!

We have finally made the climb out of the hole and have caught up on all the posts!

I am current on the following documents from Administrative Office of the Courts:

  • Monthly minutes of published and not to be published decisions from SCOKY (up through May 2013).
  • Weekly minutes of published and not to be published decisions from COAKY (up through June 7, 2013.
  • Monthly summaries of published decisions prepared by SCOKY (up through May 2013);
  • Monthly summaries of published decisions prepared by COAKY (up through February 2013; March, April and May 2013 are not yet posted, but when they are we will deliver);
  • Monthly calendar of oral arguments before SCOKY and COAKY (up through June 2013:
  • Link to current PDF of discretionary reviews granted by SCOKY (this is a single document listing all cases on SCOKY’s calendar pending discretionary review; please note that I am trying something different on cases pending discretionary review, eg., when the monthly minutes come out, I will try post a separate post for each decision for which a discretionary review was granted with the case name and links to the case information page at SCOKY and COAKY, plus a link to the PDF copy of the lower court decision.  Please note this is not easy, but I do believe it is so helpful.)

By the way, I hope you enjoy the legal pictures from around the Commonwealth.

However, if anyone has the audio or video of any appellate argument that is pending or has even been decided, please email me at kycourtreport@gmail.com with the information and setting up how to get the media delivered to me.  Please note, even if it is on videotape, and it is a classic such as the Coots v. Allstate, Hilen v. Hays, or shows some lawyers of renown that can serve as mentoring —- please, please let’s get it posted!

Michael Stevens, editor

 

 

New Blog Idea – Using Photos Taken From Kentucky in my Posts

Water Fountains and Kids Cooling Off at Waterfront Park Louisville (used iPhone 4)

Water Fountains and Kids Cooling Off at Waterfront Park
Louisville (used iPhone 4)

Hope you have enjoyed the images.  I like take pictures, whether it be with my iPhone, iPad, Canon Powershot, or Canon 60D.

The picture chooses you, and not the other way around.  And when it does, you use whatever is at hand to memorialize the view.

I had a choice.  No pictures; use pictures off the web; or my own.  And who said, the picture must resonate the theme in the post?  Nobody, that is who.

I enjoy taking pictures, and I enjoy sharing those with others.

You will be seeing images from the legal world around Kentucky and just around Kentucky showing each of you the uncommon wealth of the Commonwealth.

Enjoy the view.  It’s got to be a better “look see” than the stock photos (which cost $$, too).

BTW. If you have a picture of a courthouse, a historical marker, and Kentucky festival or site to see, then email it to me with a caption and your name.  More than happy to link it to your web site too.

Better yet, share old photos or famous and not so famous lawyers and old courthouses and court or legal scenes.  And should there be a story in the picture or the face of the lawyer, then please, oh so please, share it with us.  Our past is a treasure to see and hear.

From your editor and photographer.  Mike Stevens