The “Hottest Battle” Ever Fought

DBF

First Sergeant
Joined
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It was fought in Louisiana beginning in the mid-1800’s
not 1 shot was fired - no one died,
it lasted for decades,
it wasn't fought on a battlefield - it was a fight to the finish,
and was the “hottest battle” ever fought.


Tabasco_peppers.JPG

Tabasco Peppers
Photo Department of Agriculture
(Public Domain)

Maunsel White was born in Ireland in 1783. He immigrated to America in 1796 when he was just 13 years old settling in Kentucky. In 1800 he moved to New Orleans and it was there he would find his lifetime fascination with the use of “peppers and peppery sauces”. His marriage to a French Creole from a wealthy New Orleans family, Celestine de la Ronde, carried White into an influential social circle, including a life-long friendship with future U.S. president, Andrew Jackson.

440px-Maunsel_White_1851.jpg

Maunsel White
(1783-1863)
Public Domain

During the war of 1812, White served as Captain of the Louisiana Blues and participated in the Battle of New Orleans. He had become such a trusted friend to Jackson that he was sent to negotiate with the defeated British over the exchange of prisoners and restitution of slaves. After his service he was known as Colonel White.

By 1850, Manusel White was experimenting with his peppers to make sauces. An article in a New Orleans newspaper dated January 26, 1850 was simply titled “Pepper” noted that Colonel White - - -

“has introduced the celebrated tabasco [sic] red pepper, the very strongest of all peppers, of which he has cultivated a large quantity with the view of supplying his neighbors, and diffusing it through the state . . .by pouring strong vinegar on it after boiling, he has made a sauce or pepper decoction of it, which possesses in a most concentrated form all the qualities of the vegetable. A single drop of this sauce will flavor a whole plate of soup or other food.” {1}

As luck would have it, Colonel White could make the sauce, but he never marketed it, never protected the ingredients with a patent, and it would take the year after he died in 1864 for his heirs to try to package and sell it. By 1900 it had almost faded from history.
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Edmund McIlhenny
(1815–1890)
(Public Domain)

Enter Edmund McIlhenny born in 1815 in Hagerstown, Maryland, in his mid-20’s he moved to New Orleans and made his fortune in the banking industry. During the Civil war he fled with his family to Texas where he took a civilian job working for the Confederate Army in financial areas. After the war, he returned to New Orleans where he found his fortune gone. In time he would settle in Avery Island, Louisiana in a home that was owned by his wife’s family. Somewhere he acquired some tabasco pepper seeds and planted them.

He began experimenting with his peppers. He crushed peppers, mixed them with salt that was found on the Island where he lived, he aged the mixture, mixed and added other ingredients, aged for another month, until he discovered the perfect recipe for his Tabasco Sauce.** Edmund McIlhenny quickly ran to the patent office and by 1870 he held the patent on Tabasco Sauce, but does he own the right to exclusively use the word “Tabasco”?

Enter B.F. Trappey, a former employee of Edmond McIlhenny’s company decided he wanted to get into the Tabasco market so he grew the peppers from the seeds of the Avery Island plants. So by 1898, Trappey along with his 10 sons and 1 daughter began producing and selling his sauce which he called “Trappey Tabasco Sauce”. The law suits begin as to who has the rights to the word “Tabasco” in their product.

It Goes to Court

The first issue presented to the court; did Edmond McIlhenny have the exclusive right to use the word "Tabasco" on their products? Evidence was presented to prove that McIlhenny actually stole the product from Colonel White. The 1st evidence given was the claim made in the New Orleans newspaper dated January 26, 1850 that clearly gives the credit to White.

It was further testified that prior to White’s death in 1862 - - -

“White gave some [pepper] pods, along with his recipe, to his friend Edmund McIlhenny,
during a visit to White’s Deer Range Plantation.”
[3]

The heirs to Edmond McIlhenny testified their father was given the seeds from a former Confederate soldier after the Civil War and planted them on Avery Island. There was evidence submitted from a noted American botanist that in 1881 the McIlhenny’s pepper was "officially recognized and is now classified as Capscium frutescens var. tabasco". {4}

Just to make the story more interesting

By 1905, Congress passed the act “providing for federal registration of trademarks used in commerce between states that had been in exclusive use for the ten years prior to enactment”. {4} The next year, McIlhenny’s Tabasco was granted the trademark.

The McIlhenny family had a famous connection at the time. Edmond McIlhenny’s oldest son, John Avery McIlhenny (1867–1942) who left the company in 1898 to fight in the Spanish-American War, would find himself fighting as a 2nd Lieutenant in Theodore Roosevelt's Rough Riders. This little fact did not go unnoticed as the President in 1906 was none other than Theodore Roosevelt. Was there pressure to grant the trademark to the McIlhenny family? That was certainly the accusation, but now the McIlhenny's family is ready for a fight and a fight to win exclusive rights to "Tabasco".

There was a slight problem. It seems John McIlhenny had claimed that they had “exclusively” used the word "Tabasco" for the 10 years when that was not true. On Jun 25th, 1907 the New Iberia Extract Company which manufactured "Extract of Tabasco Pepper", sued McIlhenny for libel. What the government grants; the government takes away. In 1909, the “Tabasco” registration was taken away by the Commission of Patents. This action was upheld in an appeals court in 1910, and the New Iberia Extract Company was awarded $5,000.00 in damages. The court determined - - -

“McIlhenny’s exclusive right to use the name "Tabasco" expired with its 1870 patent.” {4}

McIlhenny continued to fight and then on July 29, 1918 - - -

“The Fifth U.S. Circuit Court of Appeals in Gaidry v. McIlhenny Co., 253 F. 613, recognized McIlhenny as the exclusive holder of the right to sell pepper sauce with the mark “Tabasco.” In short, the court found that despite the geographic descriptiveness of the word Tabasco, it had acquired a secondary meaning to the public as an source identifier, namely identifying McIllhenny’s red pepper sauce.” {4}

After this decision, McIlhenny filed a trademark infringement suit in 1919 against Ed Bulliard and his “Evangeline Tabasco Sauce”. In 1920 Bulliard stopped using Tabasco Sauce in his title but was allowed to list Tabasco peppers in the ingredients.

They were still fighting in 1929 when they finally won a trademark infringement suit against Trappey. Tabasco peppers may be listed in the ingredients - but that is the only use allowed. Trappey’s Tabasco product became “Trappey's Louisiana Hot Sauce”.

The McIlhenny Tabasco Company fought hard to retain the right to used the name Tabasco on their product and their product only. From 1906 their Tabasco remains one of the oldest trademarks in America the result of the “hottest battle ever fought”.


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(Public Domain)



**Another Thread on Tabasco Sauce & How It's Made

Sources
1. https://www.thespruceeats.com/tabasco-sauce-history-and-lore-3050514
2. Clement Eaton, "Maunsel White," The Mind of the Old South (Baton Rouge, La.: Louisiana State University Press, 1964), p. 51.
3. “Peppers: the Domesticated Capsicums”, Jean Andrews, p. 121
4. http://www.vegastrademarkattorney.com/2007/10/story-of-tabasco-trademark.html
5. http://www.metnews.com/articles/2004/reminiscing090204.htm
6. Wikipedia - Maunsel White/Edmund McIlhenny/B.F. Trappey
 
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