In a seminar at the 2017 Tales of the Cocktail conference in New Orleans, two lawyers and two members of the bar community discussed intellectual property as it applies to cocktails, bars, and brands.
The panel first covered the basic definitions and practical uses of patents, trademarks, and copyright. Patents cover functionality, so some barware, like the Porthole infuser and Hawthorne strainer, have been granted patents. Patents last for 20 years before they expire.
Names, logos, domain names, and so on—Sazerac and Skinnygirl, for example—can be trademarked. Registering a trademark is meant to protect the brand image that would be undermined if someone was to knock off the trademarked product.
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“At its core, a trademark is about confusion: Will you confuse [a knockoff] with the original brand?” said the panel’s moderator, spirits author Philip Greene, who is also a trademark attorney for the U.S. Marine Corps. Trademarks don’t expire as long as their use is both continuous and enforced.
John Mason, a lawyer with Copyright Counselors, explained that when a client hires him to help decide whether a company or brand name should be trademarked, he commissions a trademark search and then supplies his written professional opinion on whether that trademark is available or not, whether there are any similar trademarks, and how much potential there is for the trademark to be challenged by another party. Then the client can decide to go for it or pick a different, more distinctive name and start over.
Copyright covers creative works like music, novels, website and other design, and so forth, and the rights are vested as soon as the work is created or, in lawyer-speak, “when work is fixed in a tangible medium of expression.” Copyrights are valid through the lifetime of the creator and a certain extra amount of time, depending on whether the work was an original creation or a work for hire.
The panel then discussed specific examples of these matters in the cocktail world—that have often led to lawsuits. Greene noted that you can’t copyright a drink recipe, as recipes are considered facts.
However, you can protect drink names by registering them as trademarks, as in the case of the Hand Grenade from the Tropical Isle bars in New Orleans, and the Dark ‘n Stormy, registered by Gosling’s rum.
The panel discussed a few classic and recent lawsuits, including a case that questioned whether Bacardi must be used in a Bacardi Cocktail (yes), the ongoing multi-decade Havana Club Rum trademark battle between Bacardi and Pernod-Ricard, and whether it was worth it for Pusser’s, of the trademarked Pusser’s Painkiller drink, to send a cease-and-desist letter to the New York bar Painkiller (resulting in the bar being renamed PKNY), considering all the negative press and ill will the action earned in the bartending community.
Panelist Andrew Friedman, co-owner of Liberty bar in Seattle, shared a couple of experiences in which he said he learned the hard way to register brand trademarks early and that one should be cautious in talking about one’s good ideas before the legal paperwork has been finalized.
Steffin Oghene, who worked on the iconic copper pineapples and other glassware and barware for Absolut Elyx, also shared some eye-opening experiences. Several manufacturers imitated the copper pineapples after they proved unexpectedly popular, and 97 of the first 100 of them, brought to Tales of the Cocktail a few years ago, said Oghene, went “missing.”
Oghene said that it was so costly and time-consuming to enforce Elyx’s patent on the pineapple drinking vessels, and that by the time Elyx would be able to have any real impact on the copycat makers the cups might no longer be trendy anyway, that they decided to chalk the experience up to imitation being the sincerest form of flattery.
However, when Elyx later opened the Elyx Boutique in response to consumer demand, most of the bar tools bore a custom-designed pattern, and this time the owners made sure to protect the pattern with a copyright in the U.S. and a design patent in the EU.
Though the law seems pretty clear when it comes to people’s inability to legally protect their drink recipes, it quickly becomes complicated with regard to drink names, products, and brands. Getting legal advice is not inexpensive, but in the long (and sometimes short) run, it’s absolutely necessary.
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Camper English is an international cocktails and spirits writer, speaker, and consultant, with a focus on the science of booze and big clear ice. His work has appeared in Popular Science, Cook’s Science, Whisky Advocate, Saveur, Details, the San Francisco Chronicle, and many other publications.