Jack Daniel Distillery, Lem Motlow, Prop., Inc., Plaintiff, Appellant, v. Hoffman Distilling Company, Defendant-appellee, Andfrank Silverman & Company, Intervener-appellee, 303 F.2d 436 (6th Cir. 1962)

Joe E. Daniels, New York City (Ben H. Morris, Louisville, Ky., Chauncey P. Carter, Washington, D. C., Liddy, Sullivan, Hart, Daniels & Stemple, New York City, John J. Hooker, Tyree B. Harris, III, Hooker, Keeble, Dodson & Harris, Nashville, Tenn., on the brief), for appellant.

Charles B. Cannon, Chicago, Ill. (John K. Skaggs, Jr., James E. Fahey, Skaggs, Hays & Fahey, Louisville, Ky., Max W. Petacque, Chicago, Ill., on the brief), for appellees.

Before CECIL and WEICK, Circuit Judges, and DARR, Senior District Judge.

In our opinion we mentioned that the fact that some of the statements made by Ezra Brooks concerning its product were false and untrue did not give rise to an action for unfair competition in favor of plaintiff. We had in mind the claim of Ezra Brooks "There just ain't enuf to go around" and the picture of an old distillery on its label.

Assuming that Ezra Brooks whiskey was not in short supply we fail to see how this creates a cause of action in favor of plaintiff.

The same is true about the picture of a distillery on its label when its whiskey was manufactured by independent distilleries. The evidence disclosed four other brands of whiskey using an illustration of an old distillery on their labels.

The other matters presented in the petition for rehearing were previously considered by the Court and we adhere to our opinion.

The petition for rehearing is denied.