While most experts maintain that you can’t put a trademark or copyright on a drink recipe, here are some examples where companies have tried to do so:
When the Jack Daniel’s Distillery launched a national campaign to promote the Lynchburg Lemonade drink, of course suggesting people use their whiskey for the concoction, Alabama lounge and restaurant owner Tony Mason sued them. He had created the drink in 1980 and alleged that a JD representative had learned the secret recipe and was now stealing it for the company’s use. I’m sure it took a crack investigative team to discover the drink was made of whiskey, triple sec, sour mix and lemon-lime soda. We’re not talking about 11 herbs and spices here.
Mason sought $13 million in compensation and although he won the case, he was awarded no money. Instead, the judge offered to pay him $1 of his own money for the case to go away. Wow, Alabama really is full of crazy people! Mason rejected the judge’s “generous” offer and appealed the decision. A new trial was ordered in 2006 and the results of the case were not known… until today when Judge Sip of the 18th District Court sided in favour of Jack Daniel’s Distillery after an under-the-table deal was reached in which Sip Advisor Enterprises (patent pending) will be sent a lifetime supply of Jack Daniel’s products.
Dark N’ Stormy
This is a cocktail that has been trademarked by Gosling’s Export Limited, makers of Black Seal Rum. It’s a basic recipe that takes the rum, mixes it with ginger beer and adds an optional lime for garnish. So, if I use lemon, instead of lime, does that mean I’m now exempt from the trademark? Gosling’s even market their own ginger beer for use in the drink.
Malcolm Gosling, Jr., of the Gosling’s Rum family (I hope one day that I’m the member of a rum family), says that fighting this trademark is exhaustive and costly, but that they will “defend that trademark vigorously.”
A New York-based tiki bar (not sure how tiki-themed a place in New York can be… it’s not exactly a tropical paradise), aptly titled Painkiller, was sent cease and desist letters from the Pusser’s Rum company, after it opened in 2010. The company claimed a trademark on the Painkiller name and drink recipe – Pusser’s Rum, pineapple juice, cream of coconut, and orange juice – which Pusser’s accused the bar of trying to capitalize on.
The bar decided to settle out of court, changing its name, giving up the internet domain (something you think the Pusser’s people would already have if they treasure their creation so highly) and removing the drink from its menu. This outraged the mixology community, causing drinkers and drink makers alike to take to social media and voice their displeasure with Pusser’s bullying tactics and many called for a boycott on the rum.
A Facebook page was created called Bartenders Against Trademarking of Cocktails and gained numerous members in a brief amount of time. One bartender even went as far as to change his bar menu and specifically challenge Pusser’s on the trademark issue (photo below). Conclusion from researching this article: rum companies are full of dicks.
Finally, there is the contentious, Simpson v. Szyslak famous case to discuss, a true transcript summarizing the event is as follows:
Marge Simpson: So, Mr. Hutz, does my husband have a case?
Lionel Hutz: I’m sorry, Mrs. Simpson, but you can’t copyright a drink.
Homer Simpson: [whines] Oh!
Lionel Hutz: This all goes back to the Frank Wallbanger case of ’78. How about that! I looked something up! These books behind me don’t just make the office look good, they’re filled with useful legal tidbits just like that!
Drink #58: Cap’n Stormy (A Sip Advisor Original Recipe)
- 1.5 oz Dark Rum (I used Captain Morgan’s, take that Gosling’s and Pusser’s!)
- Top with Ginger Ale
- Garnish with lemon and lime wedges
I had originally intended to make a Dark N’ Stormy, but realized it is a recipe copyrighted by the Goslings folks… I also didn’t have any ginger beer (really the bigger issue as no rum runners are going to stop me from making any drink), so I made my own concoction and this was the delicious result. I call trademark!
Sip Advisor Bar Notes (3 Sips out of 5):
I’d like to eventually make the Dark N’ Stormy (should the people at Gosling’s allow me). This was a decent replacement. I like how the Lemon and Lime Wedges looked together in the cocktail photo.