My friend Tim Lee, whose new blog I linked to this morning, follows up on the Dark and Stormy controversy with a clarification about the purpose of trademark law:
[...] trademarks have a dramatically different policy rationale from patents and copyrights. Copyrights and patents are designed to create legal monopolies that drive up the price of creative works and thereby reward authors and inventors for their creativity. Although consumers may benefit from the resulting increase in creativity, the short-term effect is to force them to pay more than they would in a competitive market. Trademarks aren’t like that at all. The point is not to limit competition. To the contrary, the point is to enhance competition by ensuring that consumers know what they’re getting. This is why it’s emphatically legal to run comparative advertising featuring your competitor’s trademarks. Microsoft may own the “Windows” trademark, but Apple is free to use it as a punching bag as long as they don’t mislead consumers about what they’re getting.
The same principle applies in the Dark and Stormy case. The point of trademark law is to make sure consumers know what they’re getting (whether it’s Gosling or Zaya), not to give Gosling a monopoly on the concept of mixing ginger beer with rum. I haven’t seen Zaya’s ad and I’m not a trademark lawyer, so I don’t want to speculate on the legal merits of Gosling’s position. But certainly the apparent purpose of Zaya’s ad—encouraging bartenders to substitute their own rum in place of Gosling’s—is entirely within the spirit of trademark law. If the net effect of Gosling’s threats is that consumers wind up with fewer opportunities to try mixing ginger beer with different kinds of rum, that is certainly not what trademark law is supposed to accomplish.
This a good point. It’s also of interest that the recent boom in craft bartending has occurred with very little IP protection for recipes. Some enterprising writer might want to look into mixology as an example of creativity that thrives in a low IP environment as discussed in this famous paper on the “piracy paradox” in the fashion industry. My impression is that most of the recent innovations in recipes and technique have been driven by bartenders and bars seeking acclaim for their work and patrons eager to try their drinks; I’m personally thrilled when a recipe of my own invention is copied elsewhere, especially if credit is given to me or my bar. In contrast, the cocktails pushed by marketing campaigns tied to specific products are usually pretty unremarkable.
My perspective may be biased however by being so tied into the transparent, blogging parts of the bar community, and marketing cocktails may improve as firms realize the importance of getting their products used in craft bars. But even then it’s not clear that IP would play any essential role in the development of drink recipes.