Meet the moonshine distiller tangled in 'Kentucky' trademark dispute with university

WHITESBURG — Over the tasting room bar at Colin Fultz's Kentucky Mist moonshine distillery and store hangs a giant picture of Fultz's grandfather Harry Holbrook, a Sawdust Junction grocer who also made moonshine.

Back then, the moonshine-making was on the sly.

Now it's behind plate glass windows on Main Street, and accompanied by scented candles, occasional moonshine cupcakes and Kentucky Mist T-shirts.

It's those T-shirts for which Kentucky Mist has become virally famous — in a case that, as of Nov. 2, is the source of a lawsuit filed by the company in U.S. District Court in Pikeville.

Several weeks ago, Fultz got a letter from one of the University of Kentucky's contract attorneys, Michael Hargis of King & Schickli. It said that UK had trademarked the word Kentucky for items such as T-shirts since 1997.

Fultz's new distillery had tried to trademark its clothing line, which includes Kentucky Mist T-shirts. UK objected. The Internet erupted in favor of the moonshiner.

Fultz even appeared on Fox News with Tucker Carlson, who professed amazement that UK could lay claim to the word Kentucky, even for textiles.

"How can they stop me?" Fultz told Carlson. "I live there. ... How can I not use the word Kentucky? Nobody would be more entitled to it than me."

UK spokesman Jay Blanton said in an email that there was "a significant amount of confusion" on the issue and that UK hoped "to work in a spirit of cooperation to resolve the issues involved in everyone's best interest."

The university says it never meant to interfere with Fultz's business or even make him stop selling his Kentucky Mist T-shirts. It says that UK nonetheless holds sway on trademarks for clothing in Class 25, and that the licensing of such marks generates income for the university.

The lawsuit filed Nov. 2 seeks to allow Kentucky Mist to register in the disputed-trademark category and seeks to clarify the scope of UK's sway over the word 'Kentucky.'

Not grandpa's 'shine

Fultz's plan to operate Kentucky Mist in the renovated building on Main Street was approved by Whitesburg's city council in late 2014; the store opened this past September. Its still is from Paducah, and many of the moonshine ingredients also come from Kentucky.

In Betty Boles Ellison's history of moonshine, Kentucky humorist Irvin S. Cobb was quoted about traditional moonshine: "It smells like gangrene starting in a mildewed silo; it tastes like the wrath to come; and when you absorb a deep swig of it you have all the sensations of having swallowed a lighted kerosene lamp."

Fultz's moonshine, an unaged spirit, is far easier on the palate. The moonshine blend best-sellers include caramel green apple, apple pie and lemonade, Fultz said. Kentucky Mist also boasts "Hillbilly Sunrise," a combo of lemonade and strawberry flavors, for more modern drinking tastes.

He is now seeking distributors.

Fultz's moonshine maxes out at 100 proof; the flavored varieties aren't as strong. It comes in standard moonshine flavor, although there's also a sugar cane version and flavors such as infused peach, blackberry, grape (made with Virginia grapes) and cherry, as well as the aforementioned lemonade and apple pie.

Fultz describes his products as "a softer taste" than some other moonshines. A Kentucky Mist employee dispensing samples described the apple pie flavor as tasting "like Christmas": full of fruit and spice.

Trademark dispute

But back to what makes this all newsworthy: Lexington attorney James M. Francis, representing Kentucky Mist, called UK's action "shameful overreach and an assault of the right of business owners across the Commonwealth of Kentucky."

Francis maintains that the patent that UK is claiming never should have been issued by the U.S. Patent and Trademark office.

"It is blatantly disingenuous to claim that there is a likelihood that consumers would be confused between the University of Kentucky and a small Eastern Kentucky distillery and gift shop," Francis wrote.

In a statement, UK said that universities in Tennessee, North Carolina and Alabama have taken similar steps.

"To be sure, the word Kentucky is an important defining marker for our state and its geography," UK's response said. "But it's also true the university's use of the word over a long period of time has resulted in the acquisition of secondary meaning. Words that are geographically descriptive can, under the law, become protectable trademarks once they acquire secondary meaning."

Added UK: "The letter did not request in any way, shape or form that Mr. Fultz change the name of his business, abandon his effort to register the mark in Class 33 (distilled spirits), stop using the mark, or stop selling his T-shirts. It is simply incorrect to suggest that the university made such demands."

Kentucky Mist, which as Letcher County's first legal moonshine producer already had a pretty good business model, has received enthusiastic customer support, too.

UK's letter to Fultz's business "is the stupidest thing I've ever heard," said Reece Maggard of Mayking, who visited the distillery Oct. 23 to test the moonshine and buy T-shirts. "How does anyone control the name Kentucky? I'm going to buy as many as I can, out of protest."

Whitesburg physician Van Breeding contributed $100 to Kentucky Mist's legal defense fund during an Oct. 23 visit, saying the distillery and store simply were trying to contribute to mountain prosperity.

"It may not be such a good idea to attack someone who's trying to do something for the local economy," Breeding said.

Fultz's wife, Renee, said newer shirts will come with the hashtag #ourkytoo.

People are streaming in to buy the T-shirts. And they're also trying the moonshine.

Maggard, the Mayking man who was buying T-shirts, described the peach flavor as "smooth as water."

The blackberry flavor is so popular that the store briefly could not sell it Oct. 23 because it had run out of labels to put on the jars.

A customer politely asked if he could put his blackberry moonshine on reserve for when the label arrived. He was willing to wait.

This story was originally published November 2, 2015 at 3:25 PM with the headline "Meet the moonshine distiller tangled in 'Kentucky' trademark dispute with university."