Category: reason

Last week a Scottish whisky association filed suit against a U.S.-based distiller over the latter’s use of the Scottish terms “whisky” and “Highland” on its labels. The suit was filed by the Scotch Whisky Association (SWA), a Scottish trade group that represents more than 9 out of every 10 of the world’s Scotch Whisky makers.

The SWA lawsuit, filed in U.S. District Court in Delaware, alleges the Virginia Distillery Company’s use of the term “Virginia-Highland Whisky” is false, misleading, and deceptive. Among its claims, the SWA alleges that Virginia Distillery Company’s marketing violates the Lanham Act, a law that governs trademarks and which I discussed at some length in a 2014 column. 

“Defendant’s prominent use of the term ‘Highland’ and its spelling of ‘Whisky,’ among other things, falsely indicates to the public that Defendant’s product is Scotch Whisky when it is not, and/or that it is whisky that originates in Scotland, which it does not,” the lawsuit states.

In a statement issued in the wake of the lawsuit, Virginia Distillery Company CEO Gareth A. Moore defended the company’s labeling and marketing.

“Our label clearly indicates the source of our whisky, stating ‘Whisky from Scotland, Married with Virginia Whisky,'” Moore writes of the company’s blend, “and we have always been upfront in descriptions to our customers.”

Any differences between whisky and whiskey (or Scotch, bourbon, rye, and other similarly distilled spirits) boil down largely to geographic and legal standards. “American-made and Irish-made spirits are traditionally spelled ‘whiskey’ while ‘whisky’ is used primarily in Scotland, England, Wales, Canada, Australia, and New Zealand and most areas of the United Kingdom,” a Daily Progress piece on the litigation explains.

The SWA acts as something of a protector of the realm, seeking “to sustain Scotch Whisky’s place as the world’s leading high-quality spirit drink.” The group pursues this goal by “protect[ing] Scotch Whisky from those who want to take advantage of its popularity by selling fake Scotch or trading unfairly on its reputation.” (The SWA also creates clever videos such as this one, which blends humor, Neil Diamond, and a wee dram of xenophobia to make its point that Scotch should only be made in Scotland.)

The SWA has gone after allegedly fake whisky makers for decades. A Whisky Advocate piece notes that whisky giant Dewar’s—itself an SWA member—ran afoul of the SWA several years ago by marketing a honey-infused whisky. The SWA alleged the product’s labeling—which included an accurate description of the bottle’s contents: “Dewar’s Blended Scotch Whisky Infused With Natural Flavors”—should not use the term “whisky” because U.K. rules don’t allow for the addition of anything to Scotch whisky, save for water and caramel coloring. Earlier this year, the SWA sued distiller Arkay over the company’s seemingly novel “alcohol-free whisky flavored drink.”

The role of the SWA is therefore similar to (likely) hundreds of other origin-centered food trade groups, including, for example, the Parmigiano-Reggiano Consortium, which promotes “the defen[s]e and protection” of the cheese’s Italian origins.

From a purely legal standpoint, the SWA suit would appear to have a good case. U.S. regulations, the lawsuit notes, declare “Scotch whisky” (though not necessarily “whisky from Scotland”) to be “whisky which is a distinctive product of Scotland, manufactured in Scotland in compliance with the laws of the United Kingdom regulating the manufacture of Scotch whisky for consumption in the United Kingdom.” These same rules also state “‘Highlands’ and similar words connoting, indicating, or commonly associated with Scotland, shall not be used to designate any product not wholly produced in Scotland.” And U.K. rules, the lawsuit also notes, require “Scotch Whisky” to have been “produced in Scotland.”

Even if the rules appear to be on the side of the SWA, should they be? As I’ve long argued, including in my recent book Biting the Hands that Feed Us, standards of identity tend to protect large incumbent producers, stifle innovation and competition, and harm consumers.

Whisky producers in Scotland have chafed at the country’s ossified regulations and resultant stymying of innovation. Whisky Advocate reported last year that Diageo, the alcohol giant that owns several of the leading distilleries in Scotland (along with Irish brewer Guinness and many other leading brewers, vintners, and distillers), had created “a ‘secret task force’ last year to determine how Scotch whisky is ‘constrained’ in regulatory, legal, technical, and other ways, and to explore the ‘scope for reform.'”

The Scotch Whisky Association is well within its rights to sue in order to force competitors to play by the rules. But if some of the SWA’s leading members think the rules stink—and they do—then the SWA could and should find a different path forward.

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Fifty years ago, Apollo 11 fulfilled President John F. Kennedy’s 1961 promise to land Americans on the Moon. It was exactly the sort of project at which government was supposed to excel: a grand endeavor with no immediate payoff harnessing the resources of an entire nation.

Arguably, all it really demonstrated was that, if you could mug the taxpayers of an extremely wealthy nation to fund a scheme with no obvious benefit, you could orchestrate history’s coolest photo opportunity and show up those damned Russkies.

Some people mourn the end of the Apollo era as the end of heroic projects. It’s more accurate to say that it was the end of federal dominance of the public image of innovation and the dawn of an era of lower-profile but more-beneficial developments that improve human health, happiness, and wealth.

More beneficial? But didn’t the space program give us Tang? Actually, no—the stuff was already around, just not particularly popular until NASA made the astronauts drink it. But sure, let’s give NASA credit for marketing drink mix (it’s got the electrolytes Moon rocks crave!).

The private sector, on the other hand, has transformed the world around us with communications technology, computers, medicines and medical devices, and innovations in biotechnology. I’m probably missing something there, so feel free to email or tweet my oversight to me (in Apollo days, you’d have had to entrust your jabs to the government mail or a federally guaranteed telephone monopoly).

These transformations come courtesy of a host of sources, some involving government endeavors, many purely private, and others conflating the two—especially when it comes to defense spending, which has flowed in copious quantities over the years to many takers.

Increasingly, the researchers changing and improving the world in which we live do so for private businesses and independent organizations, seeking to solve specific problems or meet the perceived needs of consumers.

“U.S. [research and development] funding reached an all-time high of $499 billion in 2015,” according to estimates from the National Science Foundation‘s National Center for Science and Engineering. “This will represent the largest amount the U.S. or any nation has ever spent on R&D in a single year,” reported the American Institute of Physics (AIP) in 2016.

Of that $499 billion, “the federally sponsored share fell to a record-low 23 percent while the business sector’s share rose to a record-high 69 percent,” AIP noted. The federal government’s share of spending was at its lowest level since 1953, the year the National Science Foundation started measuring.

In 2016, the private sector funded 73 percent of U.S. research and development—$374.7 billion of $515.3 billion—the National Science Foundation announced earlier this year.

Meanwhile, the world has morphed in recent years in strange and interesting ways that may not be as dramatic as a Moon landing but are at least as important. These changes are apparent from the fact that I’m typing this article on a laptop computer on the back patio of my rural Arizona home. When finished, I’ll transmit it almost instantaneously to my editor in Washington, D.C. As I work, I’m doing my best to ignore the noisy endeavors of my teenage son, who himself is a result of fertility treatments unavailable a few decades ago and who has acquired most of his education remotely, using a variety of lessons and resources available to him far from any traditional classroom.

Even the internet that makes much of this possible and is sometimes credited to government is more accurately described as the result of a private efforts building on earlier public initiatives, with heavy emphasis on entrepreneurialism departing from and prevailing over Defense Department priorities.

Not everything new and cool is sitting on or near my patio table, though.

The world around us would be almost unimaginable—for good or ill—without cell phones. Lots of people contributed to the development of the technology, but the final spur came from rivalry between engineers at Bell Laboratories and Motorola. “Joel, this is Marty. I’m calling you from a cellphone, a real, handheld, portable cellphone,” Motorola’s Marty Cooper reportedly boasted to his rival, Bell’s Joel Engel, in the very first public call, placed as reporters looked on.

Golden rice, which started as a Rockefeller Foundation initiative, “has the potential to reduce or eliminate much of the death and disease caused by a vitamin A deficiency,” according to a letter signed by 144 Nobel Laureates. The modified rice is prominent among the low-key but potentially world-changing developments of the biotechnology revolution in general, and genetically modified organisms in particular.

Perhaps less important in terms of biotechnology, but still intriguing, is the looming challenge to vegans: is lab-grown meat ethically acceptable? The schism should be GMO popcorn-worthy.

3D printing has picked up buzz since the 1980s as a means of lowering manufacturing costs, speeding production—especially of prototypes and small runs—and evading government restrictions. “The simplicity and low cost of [3D printing] machines, combined with the scope of their potential creations, could profoundly alter global and local economies and affect international security,” the RAND Corporation noted last year.

Tellingly, as the innovations accumulate and transform society, the world is becoming more prosperous, with per-capita income soaring over recent decades (nope—no post-Apollo slump!) in an important break from agonizingly slow historical gains.

“The speed of poverty alleviation in the last 25 years has been historically unprecedented,” Alexander C. R. Hammond wrote in 2017 for the Foundation for Economic Education. “Not only is the proportion of people in poverty at a record low, but, in spite of adding 2 billion to the planet’s population, the overall number of people living in extreme poverty has fallen too.”

Economic liberalization—free markets—get much of the credit for this. Freer markets have opened the floodgates of innovation, research, and development. As a result, “agricultural productivity has greatly improved due to more scientific methods of farming, access to plentiful and much improved fertilisers and pesticides, and new high-yield and disease-resistant plants,” Marian Tupy pointed out last year for CapX.

Yeah, maybe it’s not as overtly heroic as a Moon landing. But people are healthier, happier, and wealthier because of these and myriad other private innovations, inspiring and building on one another.

And yes, that applies to space exploration, too. Recent innovations in launch vehicles and reusable craft come courtesy of private innovators. You can even get spectacle, if that’s what you want, in the form of the Tesla Roadster and mannequin “astronaut” that SpaceX launched into the interplanetary void.

Sure, that was pure marketing, just like the culmination of the original space race. But it was marketing done with the company’s own money. And it was viewed across the world on a host of devices invented and improved by private initiative in the 50 years since the Apollo astronauts took those first steps on the Moon.

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Yesterday’s California Court of Appeal Sarno v. Bailes decision strikes me as a pretty routine libel, invasion of privacy, and anti-SLAPP case—except for the background:

Disneyland enthusiasts created unincorporated associations to socialize with each other in the park.  The social clubs were named for a Disney character or theme, and in the park, members wear clothing, etc., identifying their club.  The social clubs maintain Web pages on social media platforms.  Two of the social clubs are “The Main St. Fire 55 Social Club” (MSF) and the “White Rabbits Social Club” (WR).

Also relevant, “the social club ‘The Mermaids,'” and a 12-year-old daughter of a Mermaids member who is charmingly referred to as Little Doe (Bambi’s sister, maybe?). Unfortunately, things turn far less happiest-place-on-Earth from there …..

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From U.S. v. Class, written by Judge Thomas Griffith and joined by Judges Davis Sentelle and Sri Srinivasan:

The Supreme Court has been careful to note that “longstanding prohibitions” like “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” remain “presumptively lawful.” Heller I, 554 U.S. at 626, 627 n.26…. [T]he same security interests which permit regulation of firearms “in” government buildings permit regulation of firearms on the property surrounding those buildings as well…

First, though it is open to the public, the Maryland Avenue parking lot may be used during working hours only by Capitol employees with a permit. This makes the area a potential stalking ground for anyone wishing to attack congressional staff and disrupt the operations of Congress. The operation of the national legislature depends not only on the ability of members of Congress and their staff to conduct business inside the Capitol, but also on their ability to freely and safely travel to and from work. The same special security concerns that apply to the employees while in the Capitol apply when they walk to and from their cars on Capitol property.

Second, the lot is close to the Capitol and legislative office buildings. Class possessed a firearm less than 1,000 feet away from the entrance to the Capitol, and a block away from the Rayburn House Office Building. Although there is surely some outer bound on the distance Congress could extend the area of protection around the Capitol without raising Second Amendment concerns, Congress has not exceeded it here.

Finally, as the owner of the Maryland Avenue lot, the government—like private property owners—has the power to regulate conduct on its property. See [Adderley] v. Florida, 385
U.S. 39, 47 (1966) (observing in the free-speech context that the government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated”); cf. Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (observing that when the U.S. Postal Service acts “as a proprietor rather than as a sovereign, [it] has broad discretion to govern its business operations according to the rules it deems appropriate”).

Thanks to Charles Nichols for the pointer.

 

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From Judge Thomas B. Smith’s decision last week in Doscher v. Apologetics Afield, Inc. (M.D. Fla.):

The Court has quoted from only three of the many childish emails [Doscher] and Livingston have exchanged. Obviously this needs to stop. Both sides need to learn that frequently the best response to immature behavior is to ignore it. Don’t react, don’t sink to the other side’s level, don’t try to fight fire with fire. There are disagreements in every case, that is what litigation is about. Most adversaries work out their disagreements while remaining calm and professional. Doscher and Livingston are admonished to discontinue this dumb conduct, work on their demeanor, and behave more maturely than they have to date. The Court hopes this rebuke will be sufficient to address the situation and on this basis, [Doscher’s] motion for sanctions is DENIED.

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