As I enjoy a finely crafted cocktail and represent several hospitality industry establishments, today’s article is of particular significance to me. So when I heard of a lawsuit by a distillery against a bar over the name of a cocktail, I immediately took notice. On the lower east side of New York a tiki bar formerly known as Painkiller is open for business. But this is not your grandma’s canned tiki bar! Your drink may come in a hollowed out pineapple or garnished with a piece of fruit in flames, but it is not a sweet tooth cavity cocktail bar. In its first year in business, Painkiller, now known as PKNY, has achieved great recognition and acclaim. In Time Out New York’s 2011 Food and Drink awards, PKNY, received Critic’s Pick for Best Lei in Town and runner up for Reader’s choice Best New Cocktail Bar. Named for a classic Tiki cocktail this establishment has been collecting converts sip after slushy sip.

However, this den of delicious libations was recently the subject of a federal trademark infringement lawsuit. The unlikely prosecutor was Pusser's Rum Ltd. The British Virgin Island manufacturer holds two U.S. trademarks, one for "alcoholic fruit drinks with fruit juices and cream of coconut and coconut juice," and one for "non-alcoholic mixed fruit juices," which they market as "Pusser’s Painkiller Cocktail Mix." Generally speaking, cocktails are not trademarked. The thought of someone trademarking the martini, for example, is laughable. Having a mixed drink made with specific base liquor 100% of the time is rare and discretion of which spirit is used, is generally left to the bar keep and their assessment of the client.

Tiki bar owners Giuseppe Gonzalez and Richard Boccato, were sued by Pusser’s Rum Ltd. in U.S. District Court on April 12, 2011, in which Pusser’s sued, claiming “irreparable harm to its brand, unfair competition and unfair business practices,” according to court documents on file in the Southern District of New York. In retaliation, the lawsuit has caused a group of bartenders and cocktailians to boycott Pusser's Rum, going so far to create facebook pages and t-shits which support banning Pusser’s Rum. What has bartenders and cocktailians so up in arms is both the mandate that a particular liquor be used 100% of the time with regard to a specific drink and the concept of the big company beating up on the little guy. The founder of Pusser’s Rum, has tried to address these issues on their website, but it does not seem to have slowed the boycott.

Whether a cocktail can be copyrighted is an issue that has come up before. (Watch for a trademark dispute article between Budweiser and Czech brewery Budweiser Budvar.) The idea of copyrighting a cocktail recipe is at odds with the fraternal relationship between bartenders and has been described as “not something generally embraced by bartenders as it stifles creativity when you are required by law to use a certain product in a particular drink.” . Many of the adult beverages we know and love are not trademarked. I.e., Cosmopolitian, Lemon Drop, Old Fashioned, Mint Julip, Manhatten, etc. Putting these beverages on a cocktail list, you’re not required by law to use a specific vodka, boubon or gin. And in turn, crediting cocktail recipes to a particular bar tender or establishment is something of a cornerstone of the cocktail community, which assists them in spreading their reputation. The ability to play with different products in each drink is one of the wonders of the cocktail scene, so when that choice is removed it results in the consumers’ choice being compromised.

It is a curious thing that Pusser's successfully copyrighted the Painkiller cocktail name. According to experts, the Painkiller (a blend of pineapple juice, orange juice, coconut cream, rum, cinnamon and nutmeg) was invented in 1971 by George and Mari Myrick of the Soggy Dollar Bar, in the British Virgin Islands. Jerry O'Connell, who currently owns the Soggy Dollar, has stated that the Myricks originally made the drink with Mount Gay and Cruzan dark rums. But now Pusser's, founded a decade after the drink was created, is the official and legal rum of this drink. The Pusser v. Painkiller lawsuit verdict states that the bar will now be known as “PKNY” is required to surrender its domain name, and remove any reference to “Painkiller” from their drink list or marketing material, unless it is in reference to the classic drink and states that it is made using Pusser’s rum.

Pusser's may have won the battle here, but it may find that it will lose the war. There is a Facebook page called “Bartenders and Cocktailians against Pusser's Rum.” which was created on June 9th and as of 12:30AM PST June 13, 2011, it had 720 members. Consequently, the larger issue here is are companies doing themselves significant harm by 1) establishing a copyright on material, considered by many to be within the public domain and 2) enforcing that copyright with an iron fist. Time will tell whether Pusser and other similarly situated companies have made good business decisions, but my instincts tell me the answer is no.

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