Trademark Mayhem Strikes Cocktailosphere

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I’m quite involved with the Great Cross-Country Barcrawl right now, and way behind on my blogging for that, but all holy hell has broken out in the cocktail world over intellectual property rights in the last few days. Since I do so love to blog about I.P. in cocktails, I can hardly stay out of it. Two major trademark conflicts have been settled in the last day or so, each with a clear victor, though each victor may well be of the pyrrhic variety.
Let me first be clear that I know personally some of the principals involved in each of the conflicts, in both cases the losers. But I don’t think that my opinions would be any different were they complete strangers. I have avoided speaking to those I know about this to keep my opinions entirely my own.

The first case is Trader Vic’s versus Blair Reynonlds, known for years to the cocktail community as Trader Tiki. Blair started out as a blogger and tiki enthusiast. With Trader Vic’s being perhaps the iconic tiki outfit, it is natural that the blog name Blair chose, and his iconography would be thematically similar to Vic’s. This was all fine, until Blair decided to get into the business of drinks and began marketing his own line of high-quality syrups under the name Trader Tiki. Here’s my interview from February with him on the subject of his new business.
Trader Vic’s also markets their own line of tiki syrups. In my opinion, Vic’s don’t hold a candle to Blair’s, but that is immaterial to this issue. Trader Vic’s unleashed the lawyers, guns, and money on Blair’s little business. As a result, Blair has announced he has agreed to change the name of his business to B.G. Reynolds’ Hand-Crafted Syrups. You’ll now find his products at Okole Maluna. I encourage you to visit and try his stuff. It’s really good, and I feel certain that he really needs the cash right now after all this.
My initial response was to shake my fist and otherwise blame Trader Vic’s for its corporate bullying. But the more I think about it, the more I think they were likely in the right. Certainly from a legal standpoint, and at least largely from a logical one. Trademark protection is important to businesses and consumers alike for a host of reasons. And the fact is, Vic’s can easily make the case that Blair’s business name and packaging, separately and certainly together, could confuse consumers between the brands. (Hardcore cocktail geeks may feel the distinction between the two is obvious, but this isn’t just about them.)
I don’t for a second think that Blair ever intended to ride Trader Vic’s coattails from a marketing standpoint, but intent isn’t everything here. Trader Vic’s has spent years and millions building and maintaining the value of its trademark, and has a right to protect it.
While this conflict and its resolution was likely expensive for Blair, Trader Vic’s is going to take a hit as well. This very month, they are opening a new restaurant in the heart of Portland, OR, where Blair lives. Blair is extremely popular with the local cocktail crowd, especially the local tiki aficionados. Beating up on the home team, right before opening an expensive new location is not going to help. At the very least, it will damage good-will. I do not envy the local manager, who is likely having to do a fair amount of damage control.
But the way our trademark law is structured, you have to defend your brand, often in ways that are distasteful. I think both trademark holders and the general public would both be better served if the law offered more flexible options to avoid pissing off customers.
As a final note before I get to the more obnoxious of these cases, Even if Vic’s didn’t make syrups of their own, things are close enough that they would likely have had to take action against Blair. And people would be even more pissed and Vic’s would lose even more goodwill.

Ahem.

Now we get to the second story that broke almost simultaneously, and has lots more people even more upset… with good reason, may I add. The makers of Pusser’s Rum has sued the Painkiller bar in Manhattan, considered perhaps the premier tiki bar on the East Coast. Pusser’s owns a trademark on the iconic tiki drink called the Painkiller. This means that, like the Dark n’ Stormy and Gosling’s, you cannot legally sell a Painkiller without making it with Pusser’s. Pusser’s sued Painkiller, forcing them not only to use Pusser’s in their Painkiller cocktails, but to change the name of the bar itself. The bar has announced it will now be called PKNY.
This has set off a firestorm of protest in the cocktail world. First off, New Yorkers love a good underdog story, and Painkiller, er, PKNY, has lots of fans there. If this was the only difference from Blair’s fight, there wouldn’t trending Twitter tags (#PKNY), people grumbling about Pusser’s sucks in bars from Boston to Los Angeles, and one of the best bars in the country removing Pusser’s from their Painkiller recipe and renaming the drink the “Brandkiller”.
You see, the thing that has people really hacked off it that Pusser’s should never in a million years hold a trademark on the Painkiller Cocktail. The drink, indeed the basic recipe that Pusser’s trademarked, was world famous ten years before Pusser’s was founded. Pusser’s decision to assume ownership of the cocktail, simply by filing the right paperwork illustrates three things:

  1. They are douchebags.
  2. US Trademark laws are broken.
  3. The ethics of the legal profession are broken.

First, Pussers are jerks because they chose to assume ownership of something no one owned, and which they didn’t create. Any sensible human being who is familiar with the whole story understands this is first-degree squatting. About the only thing I can imagine being a bigger dick move would be if some movie studio tried to trademark SEAL Team Six or something….

I’ll get back to the implications of the law in a moment, but let’s finish with Pusser’s. If they just tried to force Painkiller to use Pusser’s in the drink, I doubt the controversy would have lasting effects. But forcing the bar to change its name really forced folks to deal with this. Leading bartender Gaz Regan encouraged folks to focus their minds on supporting PKNY, rather than punishing Pussers. While I generally admire Gaz, I don’t think his kumbayah approach will catch on. Or rather, I think people will flock to support Painkiller, but they will also take it out on Pusser’s. Most of us don’t have the ability to drop into lower Manhattan bars on a whim to support PKNY (though if you live in New York, please do). We can easily not buy Pusser’s. Pusser’s is a moderately expensive, fairly small commercial brand. It is hardly an indispensable rum. I had a drink or two I used it for, and I usually kept a bottle in my basement bar. I’m out right now, and I won’t restock… ever. Lots of other enthusiasts will do likewise and never feel anything other than satisfaction at not lifting a bottle when we see it on a shelf. Worse, lots and lots of bars will see this and want to make an example of Pusser’s, pour encourager les autres. Why stock Pusser’s or offer Painkillers anymore if it just supports someone you don’t like? Worse, someone with whom it is clearly legally perilous to be associated?
Companies defend trademarks to preserve something of value. I strongly suspect the lasting damage to not just the Painkiller trademark, but the entire Pusser’s brand will exceed the entire (frankly dubious) value that the Painkiller trademark had a week ago. Perhaps by a lot.

And now let’s discuss the larger implications of all this, especially the Painkiller part. There is simply no way a company should have the ability to obtain ownership of a piece of well-known, essentially public-domain, intellectual property in this fashion. Most legal opinion I read said that even though the freaking’ Navy itself filed for protection of the SEAL Team Six name when it saw what Disney was doing, it would likely have lost to the Maus, had Disney pushed its suit in court. Trademark law needs to be amended to prevent this kind of abuse to begin with.

But Doug! You’re a rampaging Republican! You’re supposed to be in favor of Big Business building its power like this!

I’m pro market, not pro business. (Especially “Big Business”) Trademarks exist to maintain orderly markets, not to give well-lawyered corporations unfair advantages.

I read that Pusser’s official response to the ruckus among its customers is a rather pissy, “if you don’t like the law, get it changed.” Thanks, douchebags, perhaps we will try. In the meantime, we’ll punish you for exploiting said law.

This brings me to my last point. There is a significant flaw in modern legal morality. I was talking to a lawyer in Washington who I like. (I like most lawyers I have ever met. It’s their collective profession I find broken) He said we shouldn’t blame Pusser’s because what they did was completely legal. Here’s my response: Just because you can do something, doesn’t mean you should do it. Just because you can exploit a rule-loophole to get an unfair advantage in a tennis match doesn’t mean you should. Just because you can shoot that temporarily unarmed jihadi who is trying to surrender when no one is around to see you, doesn’t mean you should. (To be clear in that last example, I know that such an act would be illegal, but I’m going for extremes of moral scale) Regardless of whether the stakes are large or small, one should not get into the thought pattern that whatever you can get away with is alright.
Yes, lawyers should zealously advocate the legal rights of their own clients. But they not should fall into the trap of thinking in general terms that just because something wrong is legal for whatever bad reason, it is to be considered “right”. We need our lawyers to think less in terms of the probity of exploiting the law, and more in terms of the importance of stewarding it.

Update: I’ll add links of interest here.
First: @Vidiot_ has a good, lengthy post on the Pusser’s-PKNY conflict. His conclusions are similar to mine, but with research and stuff.
Next: Here is the public response from Charles Tobias, founder of Pusser’s. I haven’t finished it, but it’s clear they were caught a bit flat-footed. He does make my point above in the Trader Vic’s discussion: Trademark law doesn’t allow owners to protect their property without being jerks about it. This really has to change, folks.
Next: Jacob Grier reminds us he’s pretty much been over this ground already.
Next: TikiGeeki also goes over the trademark issue, siding with Goslings and against Pusser’s.
Next: The Cocktail Geek is more explicit than I am about the distinction between the debate on the appropriateness of trademarking and the methods of enforcing trademarks.

About the author

Doug

I am 48 years old, married with two young daughters. My interests are tennis, reading, computers, politics, and of course cocktails. I run a murder mystery party business that caters to both corporate and private events, Killing Time, murder consultants.

11 Comments

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  • Both stories boil down to syrups.

    Pusser’s sells apparently Painkiller mix (everything but the rum) and they have this trademarked and is their mode of leverage in the case. I say apparently since I have never seen it or even heard about it before this month.

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  • Charles Tobias’s most important point, as you hinted at, is his last: “Under trademark law, if the trademark owner is aware of a third party’s infringement and does not move to correct it, the trademark is not sustainable if challenged in court. We could not risk losing this mark because it would’ve wiped out two good commercial opportunities that we see for our company’s future.” Within the current trademark system, I think they are in the right; the problem is, again as you’ve mentioned, that our IP laws are broken.

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  • One note on the Trader Tiki case, I have seen it pointed out that Vic’s isn’t going after Trader Sam’s. As you mentioned, no one goes up against the Maus. So even if it’s more reasonable for Vic’s to protect their trademark, it still winds up looking like a case of those with enough money and lawyers being able to skirt the law.

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  • I’m not so convinced by the “Trader” case. I am not convinced the average consumer would be confused. Trader Vic’s used the “you can’t afford to win” strongarm against Blair because they could. That simple.

    To reiterate Jordan’s point, Trader Vic’s didn’t go after Trader Joe’s and they sure as Hell aren’t going to go after Disney’s “Trader Sam” or even more egregious “Trader Mick’s.” So the “if we don’t defend it” argument doesn’t hold water.

    The fact is Blair’s stuff is a trillion times better than the Trader Vic’s stuff, and they didn’t like it, and this was a way to stop it.

    As re. Pusser’s rum: “Pusser’s, you’re dead to me.”

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  • Doug – excellent insight, as always. As I commented on Vidiot’s post, there should be a move to make the term Painkiller generic. This is probably the legal remedy in a case like this, and I would think the argument would have merit since the drink predates the mark, the original drink didn’t use Pusser’s, and all around the world the drink is made without Pusser’s.

    One point that Tobias glosses over, of course, is that trademarks are for specific classes, not blankets across all products. Pusser’s didn’t have a trademark application for “restaurant and bar services” until after PKNY existed — and the name changing/settlement essentially was done to deny PKNY its legal right to contest Pusser’s application when it comes up for opposition.

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  • Thanks for all the details. I agree with Jordan and Jake. Vic’s should go after Trader Joe’s and definitely Trader Sam’s, but it is much easier to pick on the little guy. The “Painkiller” thing really doesn’t sit well with me. All the good will and buzz about a bar named Painkiller would have only sold more bottles of Pusser’s. I was trying to hunt the stuff down a couple months ago myself. Luckily, I didn’t find any. All of my Painkillers are going to be made with Coruba from now on.

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