Chilling Effects: The Intellectual Property of Booze

We know a lot about the properties of alcohol...but what about the intellectual property of booze? The Museum of the American Cocktail has an exhibit of patents related to the cocktail, which chiefly cover jiggers, strainers, and shakers (I'm especially fond of the patent for a Prohibition-era shaker that converts to a loving-cup trophy for public display when you're not using it), but because of the nature of patents, this protection covers processes and inventions of apparatus used in producing cocktails, not the cocktails themselves.

You can't patent a recipe, either: as Robert "Drinkboy" Hess points out in this forum at the Chanticleer Society, the collection of ingredients and basic directions can't be patented or even copyrighted. However, as Hess notes:

any "prose" associated with the recipe is also considered as copyrightable. This isn't the "directions", but the personal writeup associated with the drink that the author has penned themselves to add a little color. For example, take my "Old Fashioned" recipe. Anything within the "recipe box" on the page is free game, but the general writeup I provide outside of that is protected by copyright.

And you can't copyright the name of a cocktail, but you can trademark it. This got some attention last month, when the New York Times published an article about how the concern that makes Gosling's Rum has trademarked the Dark 'n' Stormy. Gosling's asserts that only Gosling's Black Seal Rum may legally be used in this cocktail; according to them, if you decide to use, say, Mount Gay or Appleton Estate or any other rum, you have to call it something else. (As the Times notes, Gosling's Black Seal does really have a different flavor from many other rums, and its use as opposed to another style or brand of rum would definitely change the character of the drink.)

The article got some attention in the intellectual-property world, and various IP law bloggers (not to be confused with Bob Loblaw) have weighed in with some interesting analysis. Inventor's Rock says that "because a trademark protects a brand name and not a mixture, Gosling’s trademark for 'Dark ‘N Stormy' cannot be used to keep other rums from being used in a mixed cocktail", but has it both ways by saying that Gosling's should police its mark to keep it from becoming genericized (as "aspirin", once a trade name, has become.)

A check with TESS, the trademark registration system of the U.S. Patent and Trademark Office, shows that Gosling's has trademark registration certificates on "a kit containing Gosling's Black Seal rum and ginger beer for preparing an alcoholic cocktail", and on "clothing, namely, shirts, hats and jackets" presumably bearing the Dark 'N Stormy name, and on a "pre-mixed alcoholic cocktail, namely rum and ginger beer." (Contrary to the Times article, the registration certificates do not "dictate the precise ingredients and amounts required" for a Dark 'N Stormy.) That's it. I should point out clearly that by no means am I a lawyer, nor am I any sort of intellectual-property specialist...but to my reading it looks like you can't sell a kit containing rum and ginger beer under the Dark 'N Stormy name, nor can you put it on clothes and sell them, nor can you sell a pre-mixed Dark 'N Stormy cocktail. The trademarks don't say anything about whether or not you can use other rums in the drink, nor do they say anything about how much ginger beer you add, what brand you use, or whether or not you can use a squeeze of lime. (In re: the Times says that you can't, but quotes a New York bartender who "sticks to the lawful recipe save for the dash of fresh lime juice she adds to brighten the flavors.")

The Gosling's trademark is for "Dark 'N Stormy" -- just like that, with one apostrophe in front of the N -- not for the "Dark 'N' Stormy" or the "Dark N' Stormy" or the "Dark & Stormy." The Times, which renders it, probably according to its own in-house style guides, as "Dark 'n' Stormy", quotes the New York bartender on this as well:

Ms. Salcito, at Gilt, said she was unaware of the trademark until contacted by this reporter. Pondering the legality of adding lime juice, she wondered aloud about the way the drink is listed on Gilt’s cocktail menu. “We might have to go with an ampersand,” she said.

IP law blog Known in the Marts says that won't cut it: "A bartender interviewed in the article remarks that she didn’t know about the trademark and proposes as a solution to her using a splash of lime juice (a lime wedge is allowed, but not juice) to print on the menu an ampersand as a replacement for the “n’”. That’s not going to work. It won’t pass the sight, sound and meaning analysis used to determine the similarity of a mark as part of a likelihood of confusion test."

A commenter at Rebecca Tushnet's law blog also asks:

[Is] this even a valid trademark? The claim seems to be that "Dark 'n Stormy" is a mark because the drink is made with certain ingredients, at least one of which is a branded ingredient. Under that theory, Jack & Coke is a trademark (query whether a mark of Jack Daniels or Coca-Cola) because it can only be made with Jack Daniels and Coca-Cola. And in fact making it with other types of soda or liquor would be an infringement. Weird.

Good question. I dislike the drink, but if I made it with good bourbon and Boylan's Sugar Cane Cola, could I still call it a Jack & Coke? Would I want to? That's another question entirely. (Completely incidentally, the song "Rum And Coca-Cola", made famous by the Andrews Sisters, was itself the subject of a copyright claim, but that involved claims of plagiarism, not the titular drink.)

A drink recipe specifying a particular brand has even made it to court before, most famously in New York State in 1937, when an appellate court upheld a New York Supreme Court decision from the previous year that only Bacardi rum could be used in a Bacardi cocktail. All I was able to find from some cursory online research were the excerpts from NYT articles linked to from Webtender above -- this clearly deserves some more looking into, as this seems closest to what Gosling's is asserting with their trademark policing.

There are some other trademarked cocktails, such as the Hand Grenade served in New Orleans -- I'm not sure that you'd want to copy this, but Tropical Isle warns on their site that they'll go after you if you do. (There's nothing to stop you, of course, from throwing some grain alcohol and melon liqueur and some other stuff together and calling it a "Small Bomb #2.") Pat O'Brien's in New Orleans has also trademarked the distinctive glass that their Hurricane comes in, as well as the pre-packaged mix they sell to produce it. And, I see (with some alarm) that Donald Trump has trademarked "The Donald." for "prepared alcoholic cocktails." I have no idea what goes into a The Donald, nor do I especially want to.

Law student Julian Russo makes the best point, and one that I'm concerned with, at his blog Public Knowledge:

Extend these kinds of trademarks to cover more drinks and dishes and you can pretty quickly end up with an absurd little scenario where you know what you want to order, the server knows how to make it, but it’s verboten to call it by the usual name (or at least advertise it as such on the menu):

    “Hi, I’d like a cosmopolitan.”  
    “I’m sorry, we don’t serve those…Smirnoff bought the rights.  But may I suggest a one of our famous World-Travelers?  It’s basically the same thing.” 

What's truly vexing is the thought that this kind of trademark-protection could prevent innovation in “mixology” or a wider range of cuisine.  Imagine telling a chef she has to come up with a new name for a dish, because she added her own personal flair to it.

Agreed. While you should expect a Margarita to have triple sec in it, bartenders should be able to develop drinks and make decisions on what ingredients they can use when making cocktails. A Manhattan can be very different when made with bourbon versus rye -- not even getting into the various brands of the whiskies or vermouths or bitters involved -- and those sorts of decisions dramatically change the drink while still adhering to the classic formula for a Manhattan. The freedom to make those decisions and experiment with the formulae is what advances the cocktailian craft, and anything that restricts it does the adventurous drinker no favors. Chilling effects should be the exclusive province of what happens in the shaker, not what you put into it.

Why do I mention all this? I was just told that my name for a MxMo submission infringes on a trademark for a ginger-flavored mixer. My name was rather obvious for a not-terribly-creative (but tasty) variation on the Margarita that subs Domaine de Canton ginger liqueur for Cointreau. However, Elixir G says that a Gingerita should not be my recipe, but rather a concoction of their product, tequila, and the abomination that we know as "sour mix." Fine. I've changed the name of my drink, and I think you can make it with whatever you like.

Comments

[Antoine]

This reminds me of the Bacardi cocktail affair.

[Tony Harion]

Not only that, but Elixir G has an (R) next to their Moscow Mule recipe on their website.
Actually, there are way too many (R) on that website…
OH! Including the “DARK & STORMY (R)”…
Restricting people´s creativity this far is just a bad branding approach IMO!

[Vidiot]

Yeah, I noticed that. They specify Gosling's Black Seal for their Dark & Stormy (R), but I wonder how Gosling's would react to specifying Elixir G instead of ginger beer?

and yes, they claim a trademark on Moscow Mule as well. I'm not sure I know how to read TESS correctly, but it looks to me as if Smirnoff has abandoned their trademark on Smirnoff Moscow Mule, or at least the prepackaged version they used to sell.

Interestingly, it looks like the company which makes Elixir G tried to register the Moscow Mule trademark, but was turned down by the USPTO because "Moscow Mule" "merely describes the goods" and is the generic name for the drink, and thus is "incapable of identifying the applicant’s goods and distinguishing them from those of others."

[AK]

Elixer G can take a long walk off of a short pier, because it's very clear that "Gingerita" is going to fall under the same "description of the goods" criteria as a Mule.