Dark ‘n’ Sue Me

The Dark ‘n’ Stormy is a cocktail I like on a summer day. And like any good bartender, I know that it’s generally made with Gosling’s Black Seal Rum. What I didn’t know is that the name of the drink is a legal trademark:

That’s according to two trademark certificates on file with the United States Patent and Trademark Office, which — in an exceptionally rare instance in the cocktail world — dictate the precise ingredients and amounts required to call a Dark ‘n’ Stormy, well, a Dark ‘n’ Stormy.

“We defend that trademark vigorously, which is a very time-consuming and expensive thing,” said E. Malcolm Gosling Jr., whose family has owned Gosling’s since its founding in Bermuda in 1806. “That’s a valuable asset that we need to protect.”

But a trademark-protected drink — especially one as storied and neo-classically cool as a Dark ‘n’ Stormy — seems anathema to the current bartending practice of putting creative individual spins on time-tested drinks. Drinks like this one undergo something like a wiki process: a tweak here, a substitution there, and the drink is reimagined.

As this article at Halogen Life notes, applying intellectual property to cocktails is a rare thing. (The article uses “patent,” “copyright,” and “trademark” somewhat interchangeably, but I think it generally intends to refer to trademarks.) An early example (non-trademark) is the Bacardi cocktail, which by court decision can only be made with Bacardi rum. This is understandable given the value of the brand name and the expectations of customers ordering it. Similarly, if a customer orders a Captain and Coke the bartender shouldn’t serve him a Sailor Jerry’s and Pepsi instead, at least not without asking. (Though I have to wonder if it’s possible to harm the Captain Morgan brand any more than one would do by actually serving Captain Morgan.)

Of the few cocktails that are trademarked, most are the gimmicky concoctions found in chain restaurants and tourist spots. The Dark ‘n’ Stormy is a rare trademarked cocktail that craft bartenders care about.

This would all be of merely intellectual interest if not for the fact that a competing rum company, Zaya, ran an ad in the most recent issue of Imbibe recommending its 12 Year Estate Rum in a Dark ‘n’ Stormy. According to the New York Times article quoted above, Gosling’s plans to take action protecting their trademark. Zaya responded with a press release arriving in my inbox on Monday:

Zaya Rum fully supports Mixology as an artform. By imposing a trademark or patent on a cocktail recipe one is suggesting to undermine a Mixologists’ artistic freedom. We applaud bartenders who put their personal thumbprint on a libation as an integral part of the artform; it’s what creates a recipe in the first place.

Gosling’s might be on solid legal ground, but as a craft bartender I’m firmly on the side of Zaya. I use Gosling’s in a Dark ‘n’ Stormy because it tastes good, but it’s hardly written in the fabric of the universe that no other rum pairs so perfectly with ginger beer. If another rum company thinks they’ve made a product that’s even better, I want them to tell me about it. Using unique ingredients in classic cocktails is part of what makes tending bar creative. For example, a couple weeks ago my pal RumDood wrote about his good results substituting different rums in the Painkiller, a cocktail marketed by Pusser’s Navy Rum. It’s that kind of experimentation that moves mixology forward.

Gosling’s contends that using any other rum in a Dark ‘n’ Stormy would leave customers unimpressed, decreasing sales of the cocktail and therefore of Gosling’s itself. Perhaps. The New York Times compares Gosling’s to Campari, but you don’t see bartenders throwing other Italian aperitifs willy-nilly into Negronis despite that drink’s not having any trademark that I know of. Or they give the drink a new name if they do, like the Cin-Cyn using Cynar; not because they’re required to, but because Campari really is distinctive enough to merit its own iconic cocktail. This kind of bottom-up market test is a working method of deciding when a recipe deserves a distinct name.

So when I see Gosling’s calling in the lawyers to prevent people from trying out substitutes, I start to doubt whether their rum is as good as they say it is. Hell, they’re a rum company. Would this kind of behavior impress Ernest Hemingway? Or would he mock them from his bar stool whilst demonstrating knife stunts and tossing back a daiquiri? The question answers itself!

Here’s the three-word response I’d rather see from Gosling’s: “Bring. It. On.” Dark ‘n’ Stormy competition, blind tastings by a panel of consumers and mixologists, sampled side-by-side. The loser pays for the winner’s ad campaign touting its brand as the ultimate rum for the Dark ‘n’ Stormy. What do you say, Gosling’s? Will you put your money where your mouth is?

No, of course they won’t. And I can’t say I blame them. They’ve got a good thing going with their trademark and no reason to risk losing it. But their actions have made me want to switch brands out of spite. If a “Dark ‘n’ Sue Me” shows up on my cocktail menu soon, you’ll know I found a winner.

Further discussion: Inventor’s Rock provides legal clarification and Vidiot at Cocktailians provides an excellent overview of coverage.

Update: It’s worth noting that Australian rum maker Bundaberg markets a bottled Dark and Stormy beverage. I have no idea if they have any plans to enter the US market, but keeping that particular bottle off of store shelves might be one reason Gosling defends its trademark so vigorously.

Comments

  1. Greg Warwick says:

    Tasters Choice
    I share your belief to let the taste-makers make the choice on what rum or ginger beer or… whatever they’re going to put into a drink. To lock up a drink name and associate it with only one brand is absurd, unless the name of the drink is interwoven with it. We ferment and brew Fentimans ginger beer over 7-days and dates from 1905 in Northern England. Of course, we’d like drinks that call for Ginger Beer to be made with ours. But if the bartender, mixologist or consumer has a particular fancy for a certain brand/flavor profile of ginger beer that’s not our own, then more power to them. If you’ve got such a distinctive rum as Goslings and it makes the quintessential Dark N Stormy, then you’ll get a good share of that business, won’t you. In the end, however, it’s all about free enterprise.

    Brands belong on products and not on cocktail recipes and mixologists should be allowed to mix them as they’re called.

  2. AK says:

    I don’t really think Gosling’s has a solid legal case. Something like the Bacardi Cocktail, or a more recent case involving the substitution of other energy drinks for Red Bull when the bar advertises Red Bull & Vodka, are instances where the brand and its associations are being used as a selling point, and to substitute uses the prestige of the originating brand to sell a different product, deceiving the customer. Given the openly mutable nature of cocktail recipes in the mixology world and the absence of a specific brand in the name, it’s difficult to argue that the creation of Dark ‘n’ Stormies with other brands is wrongfully profiting from the prestige of Gosling’s.

    I know my favorite Dark ‘n’ Stormy remains a certain bar’s, using another aged rum and Cruzan Blackstrap for the rum and fresh lime juice and ginger syrup in place of the ginger beer.

  3. (Here via Sullivan.)

    I’m with you – “Dark ‘n’ Stormy” has no business “belonging” to Gosling’s.

    Me, I usually use Cruzan’s Navy Black Strap rum, and absolutely love it – and for the ginger beer, I haven’t found any to compare to Goya, though it’s gotten hard to find.

  4. Dutch says:

    Ok, I can see your point. Personally I like to experiment with both the rum used, and the ginger beer. Not because I don’t like Black Seal & Barritts, but Barritts is pretty rare over here in the UK.
    So when I do substitute ingrediants, I just don’t all it a dark and stormy – if asked for the name, I’d generally just attach Mule to the country the rum was from: Jamaican Mule, Bajun Mule admittedly these names are not as evocative as Dark & Stormy.
    But:
    Would you make a Cuba Libre with Bundaberg?
    Would you make a Nica Libre with anything other than a Nicaraguan rum?

    Look at it another way, I’ve been to a bar, ordered a Bloody Mary, and what has arrived resembled a cream of tomato soup. Do you want to go to a bar, order a Dark & Stormy and take pot luck wether it will be drinkable or not?
    Sailor Jerry’s and Ginger Ale may be someones artistic take on this classic cocktail, but to me it would be sacrilege.

  5. Here’s what you do: create a signature drink with your rum, then spend years of time and millions of treasure over many year to finally – finally – achieve success and make the drink famous.

    But please – please – don’t trademark and protect your considerable investment. After all, if the Ronnie Come Latelys and your competitors, big and small can’t profit at your expense, then why bother?

    Sound silly? Of course. There are literally thousands of drinks that are unprotected and available for all the creativity these pouting bartenders wish to modify. Not to mention creating drinks of their own, and unique to their own establishment. But noooooooooo! They’d rather borrow the literal handful of protected drinks – by Bacardi, Pussers and Goslings – and ride on someone else’s reputation and success. How inventive.

    Finally a word from Charles Tobias of Pussers…

    “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. Several years of work would have gone down the drain. For 8 years, we’ve been working on a Painkiller Mix and looking at the chance for a Painkiller RTD (Ready-to-Drink Painkiller in a can). Losing the Painkiller trademarks would take away all chances of success for these products. They would be unprotected in the marketplace. If they took off, under the name “Painkiller”, any giant of a company like a Diageo or a Bacardi or some other could introduce a drink of the same name and we’d be out of the running instantly. We’d be dead.

    Thanks to the trademark law, the little guy does have a chance. indset, but neither was there any other choice. We have to protect our intellectual property on which we believe so much of our future depends. “

    We are a nation of laws, not unchecked piracy. As rum drinkers and reviewers we owe it to small distillers like the family Gosling and Tobias to respect their hard work. It’s the the right thing to do, both legally and morally.

    I know the Tobias family, and I can assure you that Pusser’s and the Painkiller are a labor of love, with half – yes half – their profits going to the British Royal Navy Seaman’s Fund. Keep that in mind the next time you substitute your house rum. Shame!

  6. Once I originally commented I clicked the -Notify me when new comments are added- checkbox and now each time a remark is added I get 4 emails with the identical comment. Is there any approach you can take away me from that service? Thanks!

  7. There are some interesting cut-off dates in this article however I don’t know if I see all of them center to heart. There’s some validity but I will take hold opinion till I look into it further. Good article , thanks and we wish more! Added to FeedBurner as effectively

Trackbacks

  1. [...] Last week I received an email from Vidiot over at Cocktailians asking my thoughts on a recent email he received from a company claiming he violated a trademark through a name he gave a cocktail.  (Whew!)  You can read his post about the situation here.  We exchanged emails throughout the day discussing the company which sent him the email, his reaction to the email and the current state of booze bloggery.  My friend Jacob also wrote about this issue here. [...]

  2. [...] Dark ‘n’ Sue Me [...]

  3. [...] based out of Bermuda (see Cocktailians’ “Chilling Effects” or Jacob Grier’s excellent “Dark ‘n’ Sue Me”).  Rum and ginger beer is one of my absolute favorite highballs.  Ginger and rum play together [...]

  4. [...] media and blogs. This is part of a general backlash against trademarking cocktail names (see the conflict over the Dark and Stormy). There’s also a lot of confusion over copyright and trademarks. Technology policy writer Tim [...]

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