Shortly after the tiki-themed cocktail lounge Painkiller opened its doors on the Lower East Side of Manhattan this May, a man walked into the bar and threatened to issue a cease and desist order. Pusser's, which distills a Navy-proof rum in the British Virgin Islands, trademarked the recipe for a Painkiller cocktail back in 1989. The man claimed that Painkiller's owners, Giuseppe Gonzalez and Richard Boccato, had no right to the name of the bar or its namesake cocktail, which they like to make with rums from Martinique and Jamaica. He was promptly sent packing.
As we've learned from the folks at Goslings, who trademarked the recipe for a Dark 'n' Stormy in Bermuda in the hopes of enforcing it the world over, it's impossible to stop people from using a certain recipe once it's out there. At a certain point, it becomes public property. But when, exactly, does that point occur?
Last month, at Tales of the Cocktail, a week-long convention for the spirits industry in New Orleans, Eben Freeman, best known as the creator of smoked Coke and "solid" cocktails at the now-defunct Tailor in Manhattan's SoHo neighborhood, gave a seminar on protecting one's intellectual property as a bartender. The panelists, Sheila Morrison from the Trademark Office, and Riley Lagesen, who has a private business law practice with a niche focus on the restaurant industry, discussed the nature of a bartender's creative work and who is allowed to use it. After the seminar, I spoke to Freeman, who admitted he came up with the idea for the talk after becoming fed up with other bartenders and establishments taking credit for and profiting from his recipes and techniques. (Fat washing, for example, the process by which a spirit can be infused with, say, bacon, was pioneered in part by Freeman, yet is often attributed to others.) "Someone needs to get sued ... to set a precedent," he told me.