Louisville, Ky.-based Rabbit Hole Spirits thinks a Fort Collins distiller’s decision to imitate its trademark was a hair-brained idea.
Rabbit Hole Spirits alleges Old Elk Distilleries pilfered its trademark leaping-rabbit image to confuse whiskey and gin lovers into buying its bourbon cream. The Kentucky distillery filed the lawsuit in U.S. District Court in Denver.
The alleged deception is all the more apparent, according to Rabbit Hole, after Old Elk named its bourbon cream Nooku, the Native American word for snowshoe rabbit.
Luis Gonzalez, CEO at Old Elk Distillery, said in a statement Tuesday that his company will contest the allegations in court.
“We cannot discuss details of ongoing legal proceedings, but Old Elk is confident in our brands and brand marks,” Gonzalez said.
Old Elk features trademark-infringing designs of a leaping snowshoe rabbit wearing a wind-tousled scarf, according to the lawsuit filed by Louisville, Ky., attorney Amy Cahill and Denver attorney Leonard MacPhee.
Rabbit Hole seeks temporary and permanent injunctions against Old Elk preventing the distiller from marking its products with a leaping rabbit. It is also seeking compensation for all profits Old Elk received while using “infringing rabbit marks.”
The Rabbit Hole lawsuit says it has suffered and will continue to suffer irreparable harm to its business, goodwill and reputation if Old Elk continues infringing on the company’s rabbit trademark.
Since 2012, the U.S. Patent and Trademark Office has granted Rabbit Hole numerous trademark, service mark and trade dress registrations, the company says. The leaping rabbits have been emblazoned on snifters, shot glasses and whiskey glasses. Rabbit Hole products include Rabbit Hole Straight Bourbon Whiskey, Rabbit Hole Straight Rye Whiskey and Rabbit Hole London Dry Whiskey.
Since its founding, the likes of Forbes magazine, NightClub&Bar magazine, HuffPost and Liquor.com have published articles about Rabbit Hole spirits. World Wine & Spirits gave a “double gold award” to Rabbit Hole under the best straight bourbon category, the lawsuit says.
Rabbit Hole has subsequently invested $15 million to build a 55,000-square-foot distillery in Louisville that will produce 20,000 barrels of spirits annually, the lawsuit says.
“…the Rabbit Hole marks have become strong and well-known among distilled spirits consumers and potential consumers,” the lawsuit says.
In 2016, Old Elk introduced a bourbon cream product called Nooku using the slogan, “Soft as a rabbit, hard as bourbon.” It also promoted its bourbon in connection to the Kentucky Derby. The advertisement includes a recipe for Mint Julep on its Facebook page, the lawsuit says.
“At no time has Old Elk sought or received permission or license from Rabbit Hole to use the Infringing Rabbit Marks,” the lawsuit says. Rabbit Hole wrote Old Elk’s attorney a letter on Sept. 26, demanding Old Elk “forever cease” its infringing marks.
But Old Elk denied its mark infringed on Rabbit Hole and declined to discontinue using its image of a rabbit to promote Nooku.
Old Elk markets Nooku as a one of a kind, the first true bourbon cream using the company’s high-malt bourbon recipe blended with fresh dairy cream.
“This unique product is a creation from Old Elk Distillery and was awarded Gold at the 2017 New York International Spirits Competition,” its website says. “What better way to create the smoothest whiskey cocktail, than with Nooku Bourbon Cream? Try Nooku in your favorite cocktail and baking recipes.”
The New York spirits competition named Old Elk the Colorado Distillery of the Year in 2016 and 2017, the company’s website says.
