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.”