misrepresentation of origin was not material and thus not false advertising

Boshnack v. Widow
Jane Distilleries LLC, 2020 WL 3000358, No. 19cv8812 (DLC) (S.D.N.Y. Jun. 4,
2020)
 

In trademark cases,
courts don’t require any materiality showing. That matters. Materiality here
defeats the only plausibly pled falsities about Widow Jane’s whiskey, which
were about its origin. Before the Widow Jane label updated during 2018, it said:
(1) “Kentucky Bourbon Whiskey Aged 7 Years In American Oak” and (2) “Pure
Limestone Mineral Water From the Widow Jane Mine – Rosendale, NY.”

 

The Widow Jane using
this label was distilled in Kentucky, using water from Kentucky. The limestone
mineral water was added to Widow Jane after the Kentucky bourbon arrived in New
York for bottling. Boshnack alleged that limestone water has “unique properties
which makes it ideal for distillation” but that adding limestone water to
bourbon after distillation is “meaningless and inconsequential.” Also, the
limestone water used in Widow Jane does not actually come from the Widow Jane
Mine, just from a source nearby.

After the 2018
update, the Widow Jane labels contained the following relevant phrases: (1)
“Pure Limestone Mineral Water From the Legendary Rosendale Mines of NY,” (2)
“Hand assembled in Brooklyn using the richest and rarest straight bourbons …
non-chill filtered & proofed with our own mineral water from the legendary
Rosendale Mines of NY,” and (3) “KY, TN, IN Bourbon Bottled by Widow Jane
Distillery Brooklyn, NY.” 

Boshnack allegedly
bought a pre-update bottle of Widow Jane in January 2018 for approximately $85.

The court concluded
that he didn’t plausibly allege deceptiveness to a reasonable consumer. The
labels didn’t misleadingly suggest NY distillation: The pre-update label
described Widow Jane as “Kentucky Bourbon Whiskey,” so a reasonable consumer wouldn’t
conclude that it had been distilled in New York. 

As for
misleadingness about the manner in which limestone water was used, the label
didn’t assert that it was used in distillation, and the whiskey did contain
limestone water. (That doesn’t really get to the misleadingness alleged about
the utility of distilling v. proofing with limestone water, though.)
 

As for the
pre-update reference to “Water From the Widow Jane Mine” was misleading, it
wasn’t material. The complaint didn’t explain why anyone would care, especially
since the complaint alleged that adding post-distillation limestone water was “meaningless
and inconsequential.” Plus, the whiskey allegedly continued to be sold at a
significant price premium even under the post-update labels, and those labels
used the unchallenged phrase “from the legendary Rosendale mines of NY.” “This
suggests that removal of the indication that the water came from the Widow Jane
Mine was not material to the bourbon-consuming public.”

 

 

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