The popular whiskey brand Michter’s and an upstart Pennsylvania company are trading blows over who has the rights to use “Bomberger’s.”
I have obtained copies of cease and desist letters, and both sides confirmed they’ve corresponded over the trademark rights in question.
In a recent letter, through legal counsel, the Pennsylvania-based Bomberger’s Distillery suggested Michter’s parent company, Chatham Imports, created consumer confusion with its newly released “Bomberger’s Declaration” bourbon. Bomberger’s Distillery attorney Luke Brean, of BreanLaw LLC, wrote to Chatham’s attorney: “My client and his distributor have come across several instances of actual confusion among retailers that have inquired about the relationship between Bomberger’s Distillery and your client’s Declaration product. … Given the incredible similarity between the marks, your client’s continued advertisement and sale of their Bomberger’s Declaration product is in violation of Mr. {Marc L.} Reber’s {Bomberger Distillery partner} common law trademark rights. To avoid further action, we require you to take immediate steps to cease and desist use of Bomberger’s Declaration or any other confusingly similar mark in the promotion or sale of any products or services under the Bomberger’s Declaration mark and name.”
Brean said Bomberger’s Distillery trademark was applied for on December 13, 2012, and has been “applied for goods” since September 23, 2014. (View the trademark status of Bomberger’s Distillery and Bomberger’s Declaration.)
Owned by Chatham Imports, Michter’s was a Pennsylvania distillery that closed in the late 1980s. The original Schaefferstown, Pennsylvania, distillery dates back to 1753 and was once owned by Abe Bomberger, who acquired the facility in the 1860s. The site was called Bomberger’s Distillery long before it became Michter’s. Chatham Imports registered the abandoned Michter’s trademarks under its company and began bottling Kentucky whiskey. (The Hagley Museum offers great historical summary and papers on Michter’s.)
In a February 27 letter, attorney Peter D. Vogl, of Orrick, Herrington & Sutcliffe LLP, defended Chatham and said it cannot agree to stop the use of Bomberger’s Declaration or to withdraw its pending trademark application. Vogl wrote: “Chatham began referencing ‘Bomberger’s’ and using its Bomberger’s Declaration trademark in commerce prior to your client’s alleged first use in commerce date of September 23, 2014.”
Vogl wrote that in order to prevent damage to “Chatham’s rights and avoid consumer confusion,” Bomberger’s Distillery must withdraw its trademark application and cease any use of Bomberger’s Distillery name in connection with distilled spirits, as well as existing or future advertising / marketing in connection to the name. “While Chatham would genuinely like to resolve this matter amicably without initiating a cancellation or court proceeding, it naturally reserves its right to assert any and all rights and remedies with respect to this matter,” Vogl wrote.
Other than confirming the two companies have corresponded, Chatham Imports did not provide comment.
Avianna Ponzi Wolf, co-founder of Bomberger’s Distillery, said Chatham is trying to rip Pennsylvania history away from Pennsylvania through legalese. “If they really wanted to trademark Bomberger’s, they could have done it 30 years ago,” Wolf said. “They just want to take it to Kentucky and in our opinion it does not belong there.”
Wolf admits she does not know the next steps, but adds she’s leaving “that to the lawyers. It’s up to {Chatham} for how far they want to take it.”
Fred Minnick is the author of Whiskey Women and Bourbon Curious.
