Hawkeye Distilling Co. v. New York State Liquor Authority

• Decision Date: 01 March 1983
• Citation: 460 N.Y.S.2d 696,118 Misc.2d 505
• Parties: In the Matter of the Application of HAWKEYE DISTILLING COMPANY, Petitioner, For Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. NEW YORK STATE LIQUOR AUTHORITY, Respondent.
• Court: New York Supreme Court

Page 696

460 N.Y.S.2d 696

118 Misc.2d 505

In the Matter of the Application of HAWKEYE DISTILLING

COMPANY, Petitioner, For Judgment Pursuant to

Article 78 of the Civil Practice Law and Rules, v. NEW YORK STATE LIQUOR AUTHORITY, Respondent.

Supreme Court, Special Term,

Part I.

March 1, 1983.

Shea & Gould, New York City, for petitioner.

Stanley Stein, Acting Counsel, State Liquor Authority, New York City, for respondent; Stephen D. Kalinsky, New York City, of counsel.

RICHARD W. WALLACH, Justice:

This is a CPLR Art. 78 application by the Hawkeye Distilling Co. for a judgment annulling a determination of respondent New York State Liquor Authority ("SLA") denying to Hawkeye brand label registration for its alcoholic beverage known as M*A*S*H vodka. The determination is annulled and the court grants judgment in favor of petitioner.

Doubtless to bask in the afterglow left by the 4077th Mobile Army Surgical Hospital as it strikes its tents and steals away from the Korean and golden TV Hills, petitioner Hawkeye Distilling Co. obtained a license from Twentieth Century-Fox Film Corp. to use the name and logos of the popular television series, M*A*S*H in marketing its "M*A*S*H Vodka". To get the full benefit of the "tie-in" with the show, the distiller devised a rather special marketing technique: it packages its clearly labelled domestic vodka in the form of an intra-venous ("IV") feeding device. Sold together with the liquor is a metal contrivance permitting hookup of the bottle in the inverted position above the patient's head so familiar to experienced viewers of General Hospital and Marcus Welby, M.D. The liquid can be drunk by placing the tube in the imbiber's mouth. Presumably the gaiety of many a suburban rumpus room will be enhanced as the harried commuter drags himself inside the door of his home after a hard day at the office to obtain the dramatic resuscitation available from an oral "transfusion" of the vodka.

The whimsical features of the promotion, however, were entirely lost upon respondent SLA when petitioner applied to register its Hawkeye brand for sale in New York State. The SLA found that "the proposed label and bottling is misleading, deceptive, offensive to the commonly and generally accepted standards of fitness and good taste, is not dignified ... approval would not be conducive to proper regulation and control ...."

The decision of the authority cannot be upheld on the ground that the label of the product is misleading (cf. Gibson Wine Co. v. Snyder, 95 F.Supp. 145, aff'd 194 F.2d 329 (D.C.Cir.1951); State v. Patterson, 133 Conn. 345, 51 A.2d 141). The court has inspected the bottle produced in open court and finds that it unmistakeably labels the contents as 80-proof vodka manufactured in Skokie, Illinois. No rational person could believe that a serious medicinal application...