The Washington herald., 1908-06-04

The decision Of the Court OF Appeals Of
the District Of Columbia in the Levy-Uri
tn Ie-mark case is not final determlna-
uen Of ;he blended whisky controversy
under the pure-food law, and decides only
that whisky composed Of rye whisky.
bourbon whisky. and neutral spirits is not
entitled to be called pure rye whisky"
so as to justify the registration OF a trade
mark to be placed upon such whisky bear
ing that phrase-"pure rye whisky"
That portion Of the decision Of Justice
Robb, of the District Court Of Appeals, in
the trademark case. bearing upon the
blended whisky case now pending. is as
follows
1t is wen known that a pure rye whisky is Ell.
actly what the term imparts-a whisky made solely
from matted rye. Such whisky has all the con
generic properties Of the grain from which Il de-
riYes its name. and In the mind OF the consumer
IS associated with that particular grain and no
other. When We speak Of Scotch whisky we do not
mean whisky made from corn, but from matted
barley So too II is well understood that bourbon
whisky Is a Kentucky product, made principally
cut OK corn. with sufficient rye and barley malt
added to distinguish IL from straight ccrn whisky.
Zach kind Of whisky mentioned has its own peculiar
favor and character and is sought after as a
beverage be cause Of that favor and character.
Meant to Deceive Public.
Neutral spirits on the contrary. as IL. term sug-
gests. is colorless liquid. has neither favor nor
character. and is not a beverage az all. II raay
be produced from any fermented substance. such as
corn. potatoes, and sugar beeis Formerly It vas
used exclusively in the arts. but with the advent
Of cheaper methods Of production Il has been
palmod OF the public as a beverage By mixing
It with something 70 give it favor and character.
Since II costs far less % produce than rye whisky
II Is apparent that It's by the distller increases
has profits in proportion AZ the public Is deceived
We think Il cleug, says the oOurt. that 20 adler-
tise and sell mixture Containing rye and bourbon
Whistles and neutral spirits whether containing ia
Voring and coloT1ng matter or not as a pure rye
whisky. Is gTuesly 20 deceive the public II follows
that sitting a court Of equity we would not rec
ognize any property right in the trademark.
The court then holds that the Patent
Office should not recognize a trademark
when a court OF equity would decline to
protect the mark when registered
The Test Case Proper.
In the blended whisky test case. yet 10
be decided, and upon which expert testi-
mony will be taken and exhaustive argu-
ment made. the James Clark DistiIling
Company figures as defendant only be-
cause il happens 20 be doing business in
Washington and was in easy reach Of
the government service. 1t IS not charged
that its business is different from that OF
any other company handling blended
Whistles. or that IL is a particular Of
Tender 1t is simply used as the medium
Tor testing the new law in the courts.
Meaning of Term BLEND
The question which has agitated the
Department Of Agriculture, and the De-
partment OF Justice resulting in four
opinions by the Attorney General on
What IL whisky" arose under that sec
ton Of the foods and drugs act OF June
30. 1906. which provides that the term
blend shall be construed to mean a mix
ture OF like substances.
About s. per cent Of the whisky used IN
the United States is blended whisky. com
posed partially OF unrectifed whisky con-
tanning all the fusel oil created during
the fermentation Of the alcohol. and par
TALLY Of rectified whisky. the latter hav-
ing been redistilled until the fusel oil has
been largely eliminated Rectified whisky.
at high proof, is known as neutral spirits.
| but when reduced to 100 proof. I. e.. half
alcohol and half water has from time
immemorial been known as whisky.
The contention Of the Department OF
Agriculture. as voiced by DR. Wiley. head
Of the Bureau Of Chemistry. has been
that rectifed and unrectified whistles
were not like substances and that mix
ture Of the two. according to the practice
which has obtained in this country and
England for years, was not entitled TO be
called whisky.
Resisted by RectIhers.
The great majority of rectifiers in the
country have resisted Dr. Wlley's dehna-
tons, and opposed compliance with his
arbitrary definitions OF whisky. because
they believe implicitly that they have
every right to call their product whisky.
As a matter OF history, the rectifers
contends the article which DR.. Wiley
asserts Is the only one entitled 10 be
called whisky, and which the Attorney
General, acting on Dr. Wuey's defini-
tons. has. in his opinions, said should be
called whisky exclusively. was, until re-
cent years. known as high wines, and
considered unfit to drink. Modern meth
guise the fusel oil taste, has made the
product potable, though too highly fla
vored for any but the drinkers who
specially like such flavor.
For the purpose Of this test, seizure
was made OF certain barrels Of blended
whisky in this city, and when the iti-
cation is finally settled in that case, the
question Of What is whisky" Will have
been settled IN this country.
In the meantime. the Court Of Appeals,
according to the rectifiers. has not passed
upon the single question upon which the
controversy hinges, rs 1915 per cent
ethyl alcohol plus % per cent fusel oil.
a like substance to 1915 per cent. ethyl
alcohol?" 1t should be understood in
considering the question that there is a
trace Of fusel oil in the '99.75 per cent
ethyl alcohol last mentioned.
The same controversy in a way has
been pressed in England. only there the
question is whether a Scotch or irish
malt whisky. high in fusel oil. blended
with patent spirits" as the foreign pure
article is called. is entitled to be called
Scotch Whisky and Irish Whisky.
respectively. 1t is admitted in England
that the blended product is whisky, thu
only quarrel there being over the de-
scriptive words scotch" and Irish"
A parliamentary commission is now sit
ting in England to settle the point
Il
T0rAr urr,ErTT0Hr