BarkeepSay it’s a warm day and you’ve popped into the local tiki-themed  cocktail lounge for a refreshing beverage.   Is it possible that the tiny umbrella-embellished cocktail you’ve just been served is an infringement of someone else’s intellectual property rights?

Take the case of Pusser’s Rum Ltd., a rum distiller located in the British Virgin Islands.  Pusser’s owns a registered USPTO trademark for the PAINKILLER,  an alcoholic fruit drink made with fruit juices, cream of coconut and coconut juice.   About the same time, a cocktail lounge called Painkiller opened in New York City with a signature cocktail consisting of rum — not Prusser’s rum.  A representative of Pusser’s threatened the lounge owners with a cease and desist order.

Another company, Gosling’s Export, a family owned Bermudan distiller since 1806, owns four registered trademarks for it’s signature drink consisting of Gosling’s Black Seal rum and ginger beer called the “Dark ‘n Stormy.  The New York Times recently reported, that Gosling’s aggressively pursues bars, restaurants and other rum makers from selling or advertising drink recipes called the “DARK ‘N STORMY but using rum other than Gosling’s own.

Although companies like Pusser’s and Gosling’s appear to have legitimate gripes, neither truly understand its intellectual property rights (or they’re just bullies).  Although trademarks are certainly protectable, recipes  (i.e., particular mixtures of ingredients) typically are not.  If a drink recipe is published, copyright may protect the manner in which the recipe is expressed, but not the recipe itself.

In the case of Pusser’s Rum, it owns rights in a registered Trademark —  PAINKILLER — for  a bottled alcoholic beverage concoction sold in establishments and liquor stores, not a drink recipe.   Pusser’s may have the right to stop others from bottling the particular ingredients and selling them to others as PAINKILLER, it has no right to stop others from using the recipe.

Likewise, the four trademarks registered by Gosling’s are for marketed products (premixed or cocktail kits) and bar services.  Goslings owns no trademarks for  drink recipes. So feel free to grab your ceramic tiki mug and mix up a tropical cocktail of rum, fruit juices, coconut cream and juice and call it whatever you want (just don’t sell it under someone else’s trademark).

–Deborah A. Logan, Esq.