Trademark your Cocktail?
The assumption might be that a seminar about Intellectual Property might be, well, a bit dry. The elevator ride up to the conference was spent chatting with a gent that went the same conference last year, and was curious to see if this year’s was as animated. We were a little taken aback. Uh, animated? It’s legalese, how interesting can it be? Turns out at Tales 2010 the predecessor to our seminar by the same name ended in controversy and a fair amount of misinformation spread by various media outlets. The seminar we were attending was an attempt to clarify and correct the mistakes made.
As the cocktail renaissance continues, bartenders and owners are increasingly interested in protecting their creations. The chance of celebrity and financial gain increases in a culture where the bartender is no longer merely an employee but an artist or innovator, and disputes about who really “owns” a cocktail are becoming increasingly common. The seminar, while covering other aspects of Intellectual Property, focused primarily on the notion of trademarking a cocktail. It turns out, that’s REALLY difficult to do.
Worse yet, it’s hard to figure out where the law is on your side. Distillers are lining up to try to trademark cocktail names to ensure that their product is always used, owners are trying to claim drinks made by iconic bartenders working at their establishments… it’s a mess. You can’t trademark a recipe, period. However, you can make a case for trademarking the name. Take for instance the recent controversy between Pusser’s Rum and the bar called Painkiller in NYC. Pusser’s maintains rights to the name Painkiller, when used in regards to cocktails. Their beef, which resolved in May 2011, was that legally the bar couldn’t use the name as they had rights to it.
When it all shook out, Painkiller had to change their name to PKNY, and IF they made a Painkiller for a thirsty patron, had to use Pusser’s rum. Yeesh. The incident didn’t set well with a number of the bar community, and it will be interesting to see in the coming months what (if any) the fallout is for the cranky Pusser’s boys. A side effect of the lawsuit was a revelation that indeed, Pusser’s itself did not create the drink, but gained permission from the supposed creator of the drink, the owner of the Soggy Dollar Bar in BVI.
So, in yet another interesting twist, it does not seem that the creator of a cocktail is necessarily the one who can trademark the name, but the entity that popularizes it. If you are the one that takes the drink big time, you have the best case for a trademark in a court of law. At the seminar, the resounding theme was that before you come out with a great recipe or method as a bartender or owner, for heaven’s sake think carefully. If you are a bartender, take in to account that if the owner can prove that you created the drink while in his/her employ, the law is on their side. And for the owner, you need to make sure it’s clear (read: contractual) that you retain the rights to anything created in your bar if that’s the reason you hired them. You don’t want them running off and taking your paid-for work to their bar, when they open it across the street. Basically, protect yourself. Get it in writing, and if you are being wronged, stand up for yourself.
So much for business being done with a handshake, eh? Money changes everything it seems, even in the business of having a good time. If Don the Beachcomber and Trader Vic were duking it out today over the origination of the Mai Tai, we imagine the only ones to profit would have been the lawyers.