Bourbon…brownest of the brown liquors…so tempting…
First a disclaimer: IANAL – I Am Not A Lawyer.
I mean, I’m freakin’ SURROUNDED by them around here in the DC area, folks like…my brother. My co-blogger. Friends. Coworkers. Cocktailians.
But that doesn’t mean I know anything.
However, I shall go on anyways, because that’s what we bloggers do. And hey, a little controversy never hurt anyone, did it? (It did? Oh.)
There were three events that caused me to want to write this post. First, a certain small start-up syrups company had to change their name. Second, a bar in New York was forced to change their name (and see if you can see the thematic similarity between the two!). Third, while visiting a local bar with a solid cocktail program, a short conversation between a tourist and the bartender forced me to rethink my opinions on this topic.
INCIDENT ONE: TRADER TIKI SYRUPS BECOMES B. G. REYNOLDS’ EXOTIC SYRUPS.
On June 8th, Blair “Trader Tiki” Reynolds announced that he was changing the name of his company to B. G. Reynolds’ Exotic Syrups – and he changed the URL of his site as well. There wasn’t a huge online uproar about this.
Google results for "tiki trader"
Quick disclaimer: I’ve known Blair for quite a while and consider him a friend.
He wouldn’t say who caused this to happen, though for some of us it was pretty to easy to figure out. Heck, start doing a Google Instant search for “tiki trader” and look at what you get – or look to the side here and see what I got.
If you know anything about these kind of things, you know that brands have to protect themselves. If they fail to go after people with similar names, they can lose the protection on their name. Therefore, when a company with a very similar name is also selling syrups, you know they’re going to want to protect themselves. From my understanding, there were discussions on it, but it’s just a question a lot of times of who has deeper pockets.
According to Rumdood, Blair was “neither bitter nor angry” at what happened. On the other hand, he points out that they haven’t (as far as one can tell) gone after Disney for having “Trader Sam’s Tiki Bar” and theorizes it’s because Disney has a bigger law budget.
I’m sure that doesn’t hurt, but there’s something else, too: as far as I can tell online, it’s not selling syrups online. Therefore, Trader Sam’s becomes advertising for Trader Vic’s and not competition.
Let me put this straight out there though: I own all of the B. G. Reynolds’ syrups, save one, and they’re all fantastic. Yes, Blair is a friend of mine, but I wouldn’t hesitate to recommend them to anyone. I’ve even bought a number of extra bottles for friends and relatives! Go out there and buy some!
TRUST THIS MAN
Besides, how can you not trust that smiling face?
GIVE HIM ?YOUR MONEYS!
Ahem, sorry about that. Let’s look at incident number the second.
INCIDENT TWO: DUE TO LAWSUIT, PAINKILLER BAR IN NYC BECOMES PKNY.
PKNY
Disclaimer: I don’t know anybody, really, from PKNY, except over Facebook, and haven’t been to their bar.
From what I understand and have read, this is what happened in a chronological order starting back in 1971. From Off The Presses, according to Beachbum Berry, the Painkiller was created in a bar in 1971 called the Soggy Dollar. Back then, it used Cruzan and Mount Gay rums.
In 1979, Pusser’s Rum was founded. From the founder’s statement, he got permission from the owner of the Soggy Dollar bar to trademark the Painkiller approximately 25 years ago. Approximately 8 years ago, they started work on a ready-to-drink Painkiller and have trademarks on both an alcoholic and non-alcoholic version.
Around a year ago, the bar then known as Painkiller opened in NYC. The owner of Pusser’s claim he contacted them “more than 10 times”. They didn’t respond, and so he sued, claiming they were causing irreparable harm to his brand. The court upheld that and PKNY lost their name and domain.
This caused a huge uproar amongst bartenders, cocktailians, tiki fanatics, and various other folks.
INCIDENT THREE: A TOURIST DESIRES A GIANT FROZEN DAIQUIRI.
Giant Daiquiri from Hard Rock Hotel
Recently I was up at Liberty Tavern in Clarendon (a neighborhood here in Arlington). Liberty has a good cocktail program – I wouldn’t say it’s the most innovative, but they have a good liquor variety and make solid versions of classic cocktails.
While chatting with my bartender (who is also a friend of mine) a tourist wandered up to the bar. He was curious if they sold giant frozen daiquiris, like you get in certain places – often infused with lots of cheap juice and/or high fructose corn syrup, rum (if you’re lucky) or even just grain alcohol (if you’re on Bourbon Street), these are usually fruity, extremely sweet concoctions that bear almost no relation to the classic daiquiri.
The bartender offered him a classic daiquiri so he inquired after a frozen margarita. After she politely pointed out that they don’t make any frozen drinks, he agreed to try a classic margarita – a drink that he couldn’t drink at all.
I had a realization: he thought he knew what he wanted. He wanted what he’d gotten in a number of places before. Meanwhile, the bartenders and I knew what those drinks SHOULD be. Sure, it was partly that he came into the wrong bar to order a drink like that, and the bartender did redirect him to one that would help him better (and didn’t charge him for the margarita); however, because anyone can make a drink and call it a “daiquiri”, a “margarita”, or a “martini” (to add that one in there) we’ve come to a point where people don’t know what they’re ordering.
ANALYZING WHAT THE DIFFERENCE IS.
You might not realize it, but analysis is a combination of various words that basically mean “pulling lies out of your ass”.
Well, maybe not, but remember: IANAL. These are my opinions.
A couple of months ago, a friend of mine commented on the “Classic Cocktails” menu at a restaurant I’d visited, most of which involved “martini” or “margarita” variants. I distractedly responded that “well, it’s more of a beer joint” and he pointed out: “It’s just that terming these ‘Classic Cocktails’ is what we are fighting against.”
At first, I thought, “Fighting against? What am I fighting against? I just want folks to enjoy good drinks!”
And then incident three happened.
And I started thinking.
So…MY THOUGHTS:
A tradermark, in and of itself, is not a bad thing, nor is defending it.
I can’t be mad at Trader Vic’s for forcing the name change. They had a trademark and they had to defend it. I’m not privy as to HOW they went about that, what was claimed, etc., so I can’t say, but from an outsider’s point of view, I feel bad for Blair, but life is going on.
However, that’s more of a brand name, and not a cocktail. Let’s look at cocktails.
The trademarking of a cocktail is intended to protect the consumer – to make sure that when they order the drink, it will taste the way they expect.
This is Pusser’s argument. I think that is important in a cocktail, it should taste as you expect. However, I’m going to break this down a bit more.
If you did not create the cocktail, you should not trademark it.
Period. I don’t care that they have permission. Gosling’s gets away with it on the Dark & Stormy because supposedly it was created by them, but that not only points out the fact that Pusser’s recommended violating their trademark by using Pusser’s in a Dark & Stormy, but also my next point. Basically, in my opinion, there is no reason or excuse why Pusser’s should have that trademark.
A trademarked cocktail should not use specific brands. It should be trademarked by an individual.
This is a bit hazy, I will concede. Some specifics you can’t avoid – say, like Benedictine, or Chartreuse. However, when using rums, or whiskeys, or what have you, yes, there are slight differences, but the recipe should be generalized. It is not a religion. Recipes do not specify what brand of sugar or meat you should use.
If you’re serving a trademarked cocktail, you should give credit.
Honestly, in my opinion, if you know the origin of a cocktail, it should be credited. If you change it, it should be listed. “This is a variant of Mister Smith’s XYZ drink, but we use rum instead of poison.”
You should defend your trademark – when it is being abused.
Trader Vic’s probably does not sue Disney for Trader Sam’s because, in essence, they are advertising for them. Pusser’s should not have sued PKNY because, honestly, they were advertising the drink! If someone went home from PKNY and said “Man, I want a Painkiller now,” they’re going to look it up online or in a book. If you own the trademark on it, it should show up with your brand in it.
You should be clear and upfront with the public when defending ?your trademark.
You should be engaged in the social media game. At worst, you should just make sure your statement is public: “We do not want to have to pursue legal action, but we are defending our trademark because of X, Y, and Z reasons.” Being silent until it’s all over just makes you the bad guy automatically.
You should only trademark when you can prove no one did it before you. You should only get mad if you can prove no one came up with it independently.
It can be very easy or very hard to come up with a recipe based off watching someone make a drink. A single idea, especially if it’s to a mass audience, can cause a number of people to have the same thoughts on creating a new drink.
If you want to trademark your drink, and you’ve found that no one has made it before, that is the only time you should be able to do so – and it should be done PROMPTLY. In my opinion, that means in this day and age in VERY LITTLE TIME – like weeks, or less. And you should check with cocktail historians (at the BARE MINIMUM, check their books) and search the Internet for similar drinks.
If you DO trademark your drink (or even if you don’t, you’re just very proud of it) you should NOT get mad at someone for having a similar or even same drink unless you can without a doubt prove that they are purposely stealing it from you. It’s easy to come up with a drink that uses similar ingredients, even if you’re doing some infusing or making something custom – especially if you’re basing it off the same inspiration. Perhaps I’m being a bit naive, but I think it’s better to talk to the other folks involved and find out the genesis of their drink.
I kind of feel like I’m talking in circles by this point so I’m going to lay off. Basically, what I think is: you should only trademark if a drink is definitely yours, but at the same time, that trademark can protect the customers. The power that a trademark gives you should only be used sanely and carefully however.
What do you think?
Sadly, trademarking cocktails isn’t as straightforward as we would all like. The main problem is that trademark rights generally can be defended only if the trademark owner is actively exploiting the mark for commercial gain. For example, Gosling’s and Pusser’s realize commercial benefits from the Dark-n-Stormy and Painkiller names by promoting those cocktails as a use for their rums.
If you owned a bar and created a signature cocktail called, say, the Moist Feline, you could trademark the name and stop any other bar from serving anything named a Moist Feline, but as soon as you closed your bar or took the drink off the menu, you would find it very difficult to defend your trademark. I guess you could create a licensing program where other bars could serve Moist Felines in exchange for paying you licensing fees, thereby giving you a commercial benefit from the mark, but I can’t imagine you’d have anybody signing up for that.
Just a quick point on the Trader Vic’s vs. Trader Sam’s thing:
I haven’ actually investigated the trademarks, but Trader Vic’s doesn’t just have syrups, they happen to have a huge franchise of bars named Trader Vic’s. One of their big ones is in LA, just down the freeway from Trader Sam’s. That was the potential trademark problem that I saw them not pursuing, but then again I’m not really privy to those sorts of details.
I really just wanted to use the whole “Mickey Mouse lawyers vs. mickey mouse lawyers” joke.
As for a little controversy, Rule 4 says “controversy drives traffic,” so, no a little controversy never hurt… a blogger!
I really like the point you make about the protections trademarks afford customers as well as corporations. I’ve tried and failed to the make the point myself, but your anecdote does the job really well.
I also agree that only creators should trademark drinks, though I think, as Nathan points out, it is only practical for corporations to do so. But even if you do create a specific drink, you need to be careful about it. In a commercial field which is essentially a craft or professional one, you have a smallish number of decision makers with outsized power to harm you. If they decide they don’t like your trademark, or the actions required to enforce it, you will likely suffer more than the value of the trademark….
Nathan: that’s true; unfortunately, I think that’s part of the problem. What gets me though is that, IMHO, if the drink is at least credited to its originators (which is why I disagree with Pusser’s owning the TM on the Painkiller) it should be promoting their cocktail.
Matt: I can’t believe I forgot that part, given how much time I’ve spent in the Trader Vic’s in Atlanta. To be honest, Trader Sam’s (as far as I’m aware) has a much higher entry cost than Trader Vic’s – you must have a ticket to Disneyland! Therefore, it still works as advertising if someone wants to go to a tiki restaurant, but doesn’t want to drop the ticket price to Disneyland.
Doug: And that’s the big thing: this is a small, small industry. How much damage has Pusser’s done to themselves by this action? Most consumers won’t ever hear about it, but if you consider bartenders and such ambassadors for brands and cocktails (through telling folks at the bar, blogging, etc.) enough to give them product / travel / etc., aren’t they enough of a one to tell folks “Hey, this stuff sucks”?
Thank you for the thoughtful and insightful post. As a bartender, I disagree with this for two reasons:
) does nothing here to effect the drink, but the uneducated bartender created something that was quite simply unpalatable.
the first is that I believe that it is through education of consumers and bartenders that the quality of the cocktail experience is protected, and not through the use of a specific spirit in beverages. to this point I have tasted moscow mules (most would agree, a very simple cocktail) that were terrible because the person making the ginger beer decided that no sugar should be added. This is to say, that the choice of vodka (originally claimed by smirnoff
In addition, I would like to say how greatful I am to persons like steve olson, and andy seymore, because despite the fact that brands pay most of their bills, they are not corporate shills, but rather encourage tasting spirits and knowing how each will affect a cocktail, and thus knowing its proper individual application.
the second problem I have with trademarking in this part of our industry is that I believe that it is contrary to the excellent tradition that so many of us are now striving to bring back. In this vein, would it have truly been possible to have great manhattans the world over if the manhattan club (potentially location of invention according to wondrich) had been lawsuit happy? there is a tradition of mutual respect and of sharing of recipes in this culture, and one that I believe is wholly important to its continued growth and also, one that is gravely in danger if trademarking is promoted.
As one last anecdote, Tiki is an example of how protection causes the demise of a good and educated drinks culture. I am of the opinion that because Don Beach and Trader Vic spent so much time trying to be secretive, when they died, proper Tiki died with them. thanks to the efforts of people like BG Reynolds, and Beach Bum Berry, it is coming back in a big way, but we will still have to fight the orange-pineapple-grenadine-dark rum float mai tai for many years to come.
I post these things not for the sake of being contradictory, but because I believe the best value that can come of this is the open discourse on the subject, and I hope that is appreciated.
The whole point of tending a bar and making fancy drinks (or pretty little glasses of sweetened poison) is sharing. To even consider the selfish act of trademarking them is ridiculous and shows a complete ‘missing of the point.’
SM: Actually you don’t have to go into Disneyland to go to Trader Sam’s. Sam’s is at the hotel, and therefore publicly accessible.
As far as the community and sharing, I think I like the idea of guaranteeing that a Mai Tai is rum, orgeat, lime, curacao, and sugar, but I don’t think trademarks would work.
In a perfect world there would be a cocktail registry that dictates what the appropriate ingredients are so that you know what a margarita is…but I can’t see that happening.
Your concluding sentence reveals a serious flaw in your argument and perhaps some naivete on your part. By encouraging trademark holders to wield their power “sanely and carefully,” you are assuming that parties to these disputes will, under any set of facts, act judiciously and with some degree of sensitivity towards others in the industry and/or the history of drink-making. (Almost) all corporate entities are inherently selfish creatures interested purely in self-promotion and profit. That is how they survive and perpetuate themselves. Individual actors are not much better, often initiating legal action out of spite or some other equally dubious motive. Both groups are prone to myopia and callousness. The power of the law (in this instance, trademark law) if too readily available, will often be used as a cudgel, with the end result of stifling innovation and the dissemination of novel methodologies. To my mind, better court-created precedent under existing trademark law might address your concerns regarding original drink creations. And…lawyer sermonizing done.
One thing I have learned as a student of the law is that people are assholes and they are even worse when they have the power of the courts behind them. Offering to weaponize an asshole is akin to handing a live grenade to a toddler (see U.S. foreign policy since the Spanish American War).
Criticism aside, I dig your blog and appreciate the discourse. Keep on keepin’ on.
First off: I want to thank everyone who has responded. I was hoping to spark some discussion…
I will fully admit naivete. I even admit it in the post!
So if a trademark isn’t the answer – and many in our world complain about the various “martini”s, “margarita”s, etc., that plague the cocktail menus of the world – what would be the solution?
Your system, if applied, would certainly do your lawyer friends a world of good. Every bar would have to have a trademark lawyer on staff to watch over and defend the bartenders, in case they decided to brazenly run afoul of a cocktail trademark by modifying a cocktail.
Second, have you tasted the original published version of the Martini? You probably wouldn’t like it. It was adjusted and improved over time into popular cocktail it now is. Under your system, had it been trademarked, you would have to order something ridiculously called a Martini (TM) Modified No. 982a, instead of just saying, Gin Martini, very dry, slightly dirty, two olives. To force bartenders to make a cocktail according to a strict trademarked recipe would kill their creativity. It would make them robots. There probably isn’t a cocktail in the world that hasn’t been improved by an experimenting bartender. Furthermore, complaining that a margarita tastes differently in different bars is like complaining to a NY pizzeria that their pizza doesn’t taste like a Chicago pizza.
Finally, to your last point, if a drinker likes a margarita made a certain way, he should spend the time to found out what’s in it. A bartender will modify your cocktail to your tastes and specifications.
Frank,
I never said that it should prohibit a bartender from modifying it; merely that they should attribute it and if they modify it regularly (e.g. on the menu) mention it. A local bar, for instance, that does a modified Sazerac mentions it on the menu (“we use coffee syrup…” kind of a note) while if the customer asks for a modification (“Can you use agave nectar instead of simple syrup?”) that should be more than okay.
As for the original version of the martini, I have had many of the original variations (including the Martinez) and I enjoy them. Again, I’m not saying make bartenders robots – but a dirty vodka martini has about zero in common with the classic martini. Why call it a martini? Why not call it something different?
(I’m not even that annoyed with vodka vs. gin martinis, dirty or not (and I *like* dirty martinis, admittedly) – what I’m annoyed about is stuff like “Malibu rum, Midori, Absolut vodka, pineapple juice. Garnished with a cherry” a martini.)
I have published some of my recipes online. And, honestly, I would be honoured if another establishment wanted to serve my drinks. They just shouldn’t try to claim that they invented them.
Currently, our restaurant-bar is serving a cocktail that was being served by a restaurant in another city. Since our menu layout does not have enough room to include the name of the creator or establishment, we felt justified in omitting that information from print. However, we are constantly telling customers who sit at our bar that the drink was borrowed from so-and-so establishment in such-and-such town–and (oh yeah!) they’ve got a really freakin’ awesome food menu too!
And what about recipes that customers relay to you (from another establishment) and become popular? Good luck tracking down some fresh, new DC bar (who had the strange notion to mix bourbon, ginger and elderflower) so you can ask their permission to use that idea.
When possible: give credit where credit is due. And if someone asks, tell the truth to the extent that you know it.
Trademarking specific cocktails is absurd. Can the ingredients used in the cocktail be trademarked? Sure. But cocktails involve as much creative effort as anything. What you if you garnish with a peach instead of an orange and it revolutionizes the taste? Change the quantities by 1/2oz? It’s an entirely different drink.
I just find it dumb that if I mixed Gin and Vermouth and added a flavouring (a syrup for example) that you would have to give credit to someone else and risk being sued over it.
They’re DRINKS for crying out loud. Do you want royalties on it or are you just so vain that you want popularity off it?