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June 11, 2011

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I can see it now... years from now, walking into a random liquor store, maybe somewhere on the UES (I don't know why I'm there) or some other equally desolate part of town, and finding some dusty old bottle of Pusser's on the back end of the rum shelf, and laughing as I think, Ha, I remember when that brand used to be around -- what a bunch of idiots!

Great insight here, and I'm glad that others are pointing out the June 21st opposition date.

Whether or not Pusser's should have been granted the Painkiller trademark for the drink class, they have it and they have a right to defend it. That's the law and that's business. However, the law and business also permit for a action to be filed to declare the Painkiller a generic term (like aspirin, videotape, and zipper before it). This should be the next course of action from the community -- and it would be a great way to push the trademark debate in the right direction. Law is built on precedent.

After reading up on the case, I think Pusser's had an argument against Painkiller NY, but it was a weak argument. A judge could easily have decided that a bar called Painkiller would not be mistaken for a drink of the same name (see the Opus X vs. Opus One case). And, if PKNY had simply removed the non-Pusser's Painkiller from their menu, it could be argued that no infringement was made on Pusser's marks.

What Pusser's did was simply remove PKNY's ability to oppose Pusser's "restaurant and bar services" application when it comes up for opposition on June 21st. Pusser's went all-in, and PKNY couldn't match the bet, if you will. It's all legal, it's all business, and it certainly isn't the first time it's happened -- does that mean the bartending community has to accept it? Nope. That's what great about capitalism -- the consumers get a very large say in a product's market success.

For my two cents, the following things should happen:

- Someone moves to have the term Painkiller genericized.

- Someone finds a way to oppose Pusser's "restaurant and bar services" trademark application come June 21st.

BTW, have you seen this? I had heard about it a few years back:

http://tess2.uspto.gov/bin/showfield?f=doc&state=4003:6tb6qd.2.11

http://www.trademarkia.com/company-kindred-spirits-of-north-america-inc-3559985-page-1-2

Way to shine a light on this one. For what it's worth, my attorney wife thinks you are right on the mark. I agree with the comment above. Someone should begin an effort to genericize the term Painkiller. What's next? Someone taking a run at Martini or Old Fashioned? I am concerned about what might happen to the ability to publish cocktail recipes on web sites. The high court has ruled consistently that recipes can't be trademarked or copy written but that the words above and below it can be. The cocktail community is thriving online these days because of the open nature of the communication. Companies swooping in and trademarking things not normally trademarked could really change the way the game is played.

I don't know. Its not like the Pussers company doesn't allow any bars to make the drink "Painkiller", its that the bar in NY was using the "Painkiller" name in its Tiki Bar's name. CLEARLY riding the coattails of all the investment and expense that the Pusser's company put in over all the years and introducing it to the North American Market (Over $1 million - http://www.pussers.com/joby.htm).

Look I'm a longtime Sailor and I've been to the BVI's and also sailed and been to Annapolis MD in which they have another Pussers (which is one of the few in North America). I also live & sailed the NY, NJ waters and LI Sound for over 20 years and when I think PAINKILLER I think PUSSER's. Plain and Simple. They've put the time, money and effort to promote PUSSER's which for any self respecting sailor is synonymous with PAINKILLERS.

Not that any bar can't make one - But Pusser's made it famous (with the ok of original inventors of the ~tiny~ Soggy Dollar bar in the BVI's which is called the "Soggy Dollar" because you have to anchor out and swim to the bar to get a drink ).

With that said I feel the exact same way with a “Dark n Stormy”. You can make it with a different dark Rum other than a Goslings (like for instance a Myers' and Ginger beer ~blech~) but when any self respecting Sailor thinks "Dark n Stormy" they think Goslings.

Just a little bit of perspective from a "Sailor" where I guess traditions are still cherished -- and I think most "good" bartenders and bars feel the same way. Tradition in making a classic cocktail is paramount. If not then you are just another one of those low class college bars like down Jersey Shore that serve any alchohol (usually the cheapest) and call it a "xxxx" (insert classic cocktail name here).

IMHO - Cap't Jack Sparrow....lol

Here's what you do: create a signature drink with your rum, then spend years of time and millions of treasure over many year to finally - finally - achieve success and make the drink famous.

But please - please - don't trademark and protect your considerable investment. After all, if the Ronnie Come Latelys and your competitors, big and small can't profit at your expense, then why bother?

Sound silly? Of course. There are literally thousands of drinks that are unprotected and available for all the creativity these pouting bartenders wish to modify. Not to mention creating drinks of their own, and unique to their own establishment. But noooooooooo! They'd rather borrow the literal handful of protected drinks - by Bacardi, Pussers and Goslings - and ride on someone else's reputation and success. How inventive.

Finally a word from Charles Tobias of Pussers...

"Under trademark law, if the trademark owner is aware of a third party's infringement and does not move to correct it, the trademark is not sustainable if challenged in court. We could not risk losing this mark because it would've wiped out two good commercial opportunities that we see for our company’s future. Several years of work would have gone down the drain. For 8 years, we’ve been working on a Painkiller Mix and looking at the chance for a Painkiller RTD (Ready-to-Drink Painkiller in a can). Losing the Painkiller trademarks would take away all chances of success for these products. They would be unprotected in the marketplace. If they took off, under the name "Painkiller", any giant of a company like a Diageo or a Bacardi or some other could introduce a drink of the same name and we'd be out of the running instantly. We’d be dead.

Thanks to the trademark law, the little guy does have a chance. indset, but neither was there any other choice. We have to protect our intellectual property on which we believe so much of our future depends. "

We are a nation of laws, not unchecked piracy. As rum drinkers and reviewers we owe it to small distillers like the family Gosling and Tobias to respect their hard work. It's the the right thing to do, both legally and morally.

I know the Tobias family, and I can assure you that Pusser's and the Painkiller are a labor of love, with half - yes half - their profits going to the British Royal Navy Seaman's Fund. Keep that in mind the next time you substitute your house rum. Shame!

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