The Business of Cocktails, Such a Pain

The cocktail world has been abuzz lately over the recent news of a legal battle involving a very well known tiki bar in New York called Painkiller, now forced to change its name to PKNY, and the rum brand Pusser’s Rum.  Like Prince, “the artist formally known as”, Painkill… excuse me… PKNY was sued by Pusser’s to preserve their trademark of the Painkiller cocktail because the bar was not only named after their intellectual property, but also didn’t serve the cocktail using Pusser’s Rum.  As part of the settlement, the bar had to change its name and forfeit their domain name.  News of this broke rather subtly (let’s face it, no newspaper is going to cover this one page one), however, as the Internet is want to do, quickly exploded in a wildfire of bartenders banding together in outrage over Pusser’s actions and the concept of copyrighting cocktails in general.  I first became aware of the matter when I was invited/added to the Facebook group, Bartenders Against Trademarking of Cocktails.  Formally they were known as Bartenders Against Pusser’s Rum, but quickly changed their name to a more generic cause as they were contacted by the companies involved and asked to refrain from direct attacks on the matter.  There were a couple dozen members when I joined, now the group numbers well over 700 as I write this.

Numerous people have blogged about this including RumDood and TheCocktailGeek, adding in their perspective as well as a great summary of the affair of cocktail copyrighting.  I’d like to add in my perspective on the matter as I have been pulled into numerous conversations on the topic, even receiving a phone call within minutes of posting to the Facebook group and having a half hour conversation on the topic with the very spirited Erik Trickett, creator of the group and one of my personal beloved bartenders at 320 Main, my local hangout.

The Legality of the Painkiller

Pusser’s has made a formal statement of what they did, and why, in response to the backlash that has occurred.  It is a good read to hear their side of the matter.  In short, they acquired the rights to the Painkiller and legally needed to respond to the use of their property to prevent said property from being forfeited, especially as they will be bringing other Painkiller related products to market.  They attempted to reach a deal with the bar, but after a year finally had to take them to court as no agreement could be reached.  The bar agreed to change their name and forfeit their domain name among no longer serving a cocktail called a Painkiller without using Pusser’s Rum, among other agreements.  The bar will now be called PKNY. As far as I know they will serve a cocktail inspired by the Painkiller that uses different rums.

The History of the Painkiller

The Painkiller, a famous tiki cocktail, was invented by Daphne Henderson at the Soggy Dollar Bar, according to Pusser’s. Though according to Beachbum Berry on page 78 of Beachbum Berry Remixed, it was invented by George and Marie Myrick in 1971.  It preceded the Pusser’s Rum brand by nearly a decade, and it wasn’t until in the 1990s when Pusser’s gained permission and trademarked the Painkiller globally, becoming the official rum of the Painkiller.  It is also noted by Beachbum Berry that a blend of Mt Gay and Cruzan was originally used, not Pusser’s.  The recipe itself is really nothing more than a Piña Colada with orange juice added, but is a tasty cocktail and a great intro into tiki cocktails for non drinkers.  As such it touches into a very large market and is a valuable property to own.  In many ways, its like owning the Piña Colada, but then having a cooler name to market with.

My Take

Battling over cocktails and cocktail rights is nothing new.  Don the Beachcomber and Trader Vic battled it out in the courts to determine who was the rightful creator of the Mai Tai.  Trader Vic won, but it is now considered general knowledge that Don created the Q.B. Cooler which Vic tasted and tried to imitate which became the Mai Tai (see Beachbum Berry and the history of the Mai Tai in Remixed).  Bacardi famously went after bars for not serving the Bacardi Cocktail with Bacardi. The Dark N’ Stormy can only be made, and called such, if you use Gosling’s Black Strap Rum.  Cocktails are big business.  It’s a multi-billion dollar business and companies fight for their brand to be recognized and used by the bars and consumed by the patrons.  If you can make your mark in the world, it translates to huge profits.  Just think of how much more profitable Red Bull is now.  In fact, in the history of Red Bull, their guerilla marketing consisted of trash cans outside of bars being filled with empty Red Bull cans.  What?  You’re not drinking Red Bull?!  Now Red Bull and Vodka is a bar staple.  Fucking brilliant.

The legality of a brand to own an invention which aids in their ability to profit is pretty much the basis for our current legal system.  If you own a product and you create a method by which your product becomes desired… you should have the legal right to protect yourself from other companies using your method to sell their product instead.  That seems only fair.

Cocktails are, however, a little trickier to work into the mix, pardon my pun.  Here you have a creation with a unique flavor profile… a subjective profile.  Among cocktail enthusiasts it is something that is mutable and able to be experimented with to explore the very nature of the cocktail.  Adjusting one or two aspects at a time creates a completely different experience.  Many times, simply delving back into history and finding the historically accurate genesis might be that new exploration. The craft is very much like Darwinian evolution where a state of being explodes into variations and evolves into many different experiences and facets of the original pattern.  This is the religion of the bartender and mixologist… to explore and create from the foundation of what had been created previously.  Personally, I thrive on the lost history of the cocktail and the bar, but I also LOVE exploring the variations of the cocktail.

This is where I believe most in the community have felt imprisoned by this legal situation and feel a need to lash out.  A company who is trying to sell a product is dictating what you can serve and what rum can be used.  There is no evolution, no creation, no art to the cocktail, no history.  They are no longer artists, but simply factory workers stamping out the same product, one after another, dictated to by the liquor company.  Ask any bartender who loves making cocktails their thoughts on a Lemon Drop, Cosmo or Vodka and Red Bull and you’ll see the light extinguished in their eyes and a simple nod with, “hey, it pays the bills.”  I completely understand and support the need to vary.  Don’t tell me what I have to do, I know the customer, I know his flavor profile, I want to give him the very best experience I can.  I completely understand this feeling and am glad I frequent places that care that much about a cocktail.  We all should go to places like that.

However, I also can see and understand the need to be protected from another company taking your idea and profiting from it.  If you spend millions of dollars promoting a product and another company is able to make a different version yet sell their product to consumers because of your marketing efforts, that is completely unfair.  Especially if that product has your company’s name, like Kleenex, you don’t want others calling themselves Kleenex and selling cheaper products… using your mindshare you’ve developed.  It’s only natural.  This is why we have trademark, copyright and patent systems.  It allows you the opportunity to ensure your ability to profit from your ideas for a given period of time before it is open to the public and allowed to be generic.  In this respect, Pusser’s has the right to ensure that their trademark for a “Painkiller”, and the mindshare that a Painkiller possesses, grants them the ability to promote their brand and prevent another company from slipping in and telling customers, “Psst, if you want a Painkiller, you can use our crappy rum at half the cost. Do it. It’s the same thing.”

Honestly, though, I can not agree with what Pusser’s has done.  Morally, I strive to find and appreciate the history of a cocktail.  The fact that a Painkiller didn’t originally use Pusser’s Rum is a slap in the face and effectively a rewrite of history for me.  It’s a strategic business move to leverage the mindshare of a “Painkiller” to increase profits for a specific brand… a brand that had no original link to the very creation of the cocktail.  It is a selfish move that mirrors the obnoxious activities of patent trolls in the technology industry… suing companies who actually make something, to profit like a parasite.  Any other company could have claimed trademark for a Painkiller and they would have an equal legal standing… Pusser’s just happened to be the first.  Another issue I have is the legal filing consisted of stating their brand had received irreparable harm from the bar known as Painkiller.  One of the most well respected and highly regarded cocktail bars in New York has caused your brand harm?!  If it was a cheap and sleazy strip club serving horrid drinks and a front for prostitution, perhaps I could see that, but a cocktail bar that is known across the country among the cocktail community?!  That’s a bit of a stretch.  Probably legal jargon, but still. Ok, a successful bar that doesn’t use your product makes you look bad.  Blend a better rum instead of suing for your respect.

The highest religious sanctity I hold is that of recipe and name for a cocktail.  If a Dark N’ Stormy was created by Goslings and called for Goslings, then for the love of all that is holy, use Goslings or call it something else!  That is what the creator envisioned.  That is what they created.  THAT is what it exists as.  If you vary it… respect the history… respect the lineage… respect your art and call it something else!  At the very least, make sure the customer knows what the cocktail was and what you have created and educate them in the process.  Something simple like, “This is a variation on the original X…” will do just fine.  This is why I seek out fine cocktail bars and fine bartenders.  I want to know what the original was like.  I want to know what they respect about it and what they have emphasized in this libation they now present before me.  An Old Fashioned muddled with a cherry, orange slice and sugar is a far cry from the foundational root of the spirit, sugar and bitters libation that was the Old Fashioned.  If a cherry company acquired the rights to the Old Fashioned… I would become the Lutherans of the cocktail religion and hammer messages onto the doors of bars stating how an Old Fashioned should be prepared.  Don’t fucking tell me what history you want to rewrite to make a larger profit from!  You will learn a harsh lesson about capitalism when I don’t buy your product anymore!

I do not believe Pusser’s should hold a trademark for a Painkiller.  I do not believe a trademark or patent should be transferable beyond the original creator.  I do not believe Pusser’s acted correctly.  They acted legally and given our current legal state, acted accordingly, but they made a grave mistake in thinking that they owned the right of respect as well as the legal right of ownership.  The community is speaking out and will discontinue to purchase their brand as a response.  Other brands are noticing (on Twitter I saw one other brand note, “great way to bite the hand that feeds you”) and will learn that legal right may not equate to good business. Legally, they may be justified, but it is nice to see a community rise up and call fowl… as its a community that determines what is just and what should be law in the first place.

If proper respect and protection had been given to cocktails, and all creator’s rights had been respected, I believe Old Fashioneds would not be muddled, Martinis would not used vodka and all bars would be what craft cocktail bars are today.  Trademarks and patents can ensure quality and exacting standards are obeyed, but their power must lie within the respect of the owner, creator and history or the invention otherwise it will be abused for profit and all quality and care will be diminished.

Pusser’s: You’ve slapped a community in the face for the sake of profit, turning your back on the craft and respecting the history of the art. For shame, sir.  For shame.

18 thoughts on “The Business of Cocktails, Such a Pain

  1. Thanks for the mention! A well written post, and I agree with many of your sentiments. I do think there is a crucial point missing though; the owners of PKNY should have agreed either to make their Painkiller cocktail with Pussers, or remove it from the menu. It is they who have forced Pussers hand.

  2. Although I don't like a brand pushing legal rights on something they shouldn't have the ownership of, I do agree that legally, Painkiller should have altered their use of the Painkiller, called it something different or did something to respect the history of the cocktail and current legal owner. Either way, a cocktail thats been around for 40 years compared to a brand that gained rights 20 years, I do understand how a bar would be annoyed to change their name and recipe.

  3. Yeah, just goes to show the irony of trying to force your rum into a cocktail. You need to spend millions to promote your cocktail to sell your product, but at the same time you'll need to spend millions to promote the fact that you legally own the exclusive rights too. Few will ever notice. In the end, you just better make a really good product people want to buy.

  4. Charles,

    Wow, that was an incredibly arrogant and condescending response. You may be in the right legally, but behavior matters a great deal as well. I'll be sure never to purchase any of your company's goods, and tell everyone I am able to also take a pass on Pussers products.

    Cheers!

  5. Charles,

    I really appreciate you reading my post and taking the time to reply. I think you make some interesting points. A key element to me is the concept of riding on the coat tails of the Painkiller fame, however, you paint a picture of the Painkiller being known because of your efforts. I'm sure you can understand how it would look to acquire rights to a cocktail that is already well known and use it as a pawn in your business and rewriting its history and use of rums, as opposed to being the founding force behind the promotion of the Painkiller and why it became a valuable property. I have to admit, I never knew there was a connection between Painkiller and Pusser's until this issue surfaced. If the Painkiller is known because of your efforts, those efforts have left Pusser's out of the picture within most people's minds. I understand the business but felt as if there was an ethical error in using Painkiller. It's worth thinking about if thats not the case. I've had further discussions with others and have some more thoughts on the matter worth writing about. I'll probably be writing a part 2 to this post shortly. Thanks for being involved in the discussion.

  6. I don't know. Its not like the Pussers company doesn't allow any bars to make the drink "Painkiller" its that the bar in NY was using the "Painkiller" name in its Tiki Bar's name. CLEARLY riding the coattails of all the investment and expense that the Pusser's company put in over all the years and introducing it to the North American Market (Over $1 million – http://www.pussers.com/joby.htm).

    Look I'm a longtime Sailor and I've been to the BVI's and also sailed and been to Annapolis MD in which they have another Pussers (which one of the few in North America and I also live & sailed the NY and LI Sound for over 20 years) and when I think PAINKILLER I think PUSSER's. Plain and Simple. They've put the time, money and effort to promote PUSSER's which for any self respecting sailor is synonymous with PAINKILLERS.

    Not that any bar can't make one – But Pusser's made it famous (with the ok of original inventors of the ~tiny~ Soggy Dollar bar in the BVI's which is called the "Soggy Dollar" because you have to anchor out and swim to the bar to get a drink :) ).

    With that said I feel the exact same way with a Dark n Stormy. You can make it with a different dark Rum other than a Goslings (like for instance a Myers' and Ginger beer ~blech~) but when any self respecting Sailor thinks "Dark n Stormy" they think Goslings.

    Just a little bit of perspective from a "Sailor" where I guess traditions are still cherished — and I think most "good" bartenders and bars feel the same way. Tradition in making a classic cocktail is paramount. If not then you are one of those low class college bars Jersey Shore that serve any alchohol (usually the cheapest) and call it a "xxxx" (insert classic cocktail name here).

    IMHO – Cap't Jack Sparrow….lol

  7. PS. I bet VERY VERY few would have heard of the Painkiller if it wasn't for Pusser's unless you were a sailor and sailed the BVI's and happened upon the little Soggy Dollar Bar. It would have just stayed there as a small local drink that happens all the time in thousands of locations around the world. Pusser's promoted that drink and brought it to the states and multiple places around the world.

  8. True salty dogs were enjoying the Painkiller before Pusser's was even a glimmer in the distiller's eye. Remember my seamen, the Painkiller — unlike the Dark'n'Stormy — was created with two non-Pusser's rums. True liquor PR firm agents with landlegs, however, make posts like the two above. And that's where part of the over $1 million went, hiring lawyers and suits.

  9. This idea that no one ever hears of a drink unless it is tirelessly promoted by some profit minded company is an incredibly presumptuous pothole of rationalizing. Incredulous is too tepid a word to express my open jawwed reaction to your pomposity with this "weaker than a Pusser's painkiller" argument.

    Which distillery has trademarked the Jet Pilot? Which company has proprietary ownership of a zombie? Dead Bastard? Suffering Bastard? Fog Cutter? When is Pusser's going to own the rights to a Navy Grog? After all, they are the creator and promoter of all maritime related cocktails, n'est pas? Without their tireless global marketing, we would never know of these things in this miasmatic jungle known as the United States. Correct? I think you have the scurvy, sailor boy!

  10. Ok PINHEADS ! (Whose only sailing experience was probably done on a cheezy sunset catamaran booze cruise out of some slimeball florida village pushing rotgut and juice)

    EVEN THE DAMN BAR THAT INVENTED THE PAINKILLER (SOGGY DOLLAR) GIVES CREDIT TO PUSSER's FOR THE PAINKILLER -> HERE IS A PICTURE I TOOK YEARS AGO AT THAT SOGGY DOLLAR !!!! http://tikiroom.com/img/74486x4e4b33ec.jpg

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