When you ask for a Jack & Coke, it’s pretty clear what the bartender is going to slide across the bartop. But it gets a tad murkier when your order is a Manhattan, Old Fashioned or Vodka Martini. Let’s face it: A G&T made with London dry gin and tonic dispensed from a gun tastes wildly different than one made with a modern-style spirit and artisanal bottled tonic made with cane sugar.
You can assure you get exactly what you want by requesting a call drink, that is, one made with a particular brand of spirit or ingredients. But the liquor companies whose products go into three cocktails and the owners of the bar chain where a fourth is sold have gone one step further in authenticity and fidelity: They’ve endured long-fought battles to trademark a drink’s name.
There are currently four drinks protected under the U.S. Patent and Trademark Office: the Dark ’n Stormy, Painkiller, Sazerac and Hand Grenade. But what exactly does it mean to be legally trademarked? Is it the drink, ingredients or name that’s protected? And how can bartenders navigate these tricky legal waters yet still flex their creative muscles behind the stick?
Take the Dark ’n Stormy, the spicy Bermudian blend of rum and ginger beer. Gosling’s first registered the name in Bermuda on June 6, 1980, and then went on to register the U.S. trademark in 1991, recognizing that the only true version uses Gosling’s Black Seal rum and ginger beer—preferably Gosling’s, which was created to match the notes in the rum, though it’s not technically required.
“It’s important that [it] be made in the proper way to ensure that the bartender is recreating the experience of a true Bermudian Dark ’n Stormy,” says Malcolm Gosling Jr., who serves as the company’s CEO. He recalls stories from visitors who fell in love with the drink while vacationing on the island only to return home, order one, and be served inferior rum mixed with (gasp!) ginger ale.
“The trademark protects the sanctity of the drink,” says Gosling. Trademarking the name doesn’t prevent anyone from mixing, say, Mount Gay rum and Fever-Tree ginger beer. But it does stop them from calling it a Dark ’n Stormy.
Two other names have gone through this legal process for the same reason: that substituting a different brand or base spirit would compromise the integrity of the cocktail. The Sazerac has the distinction of being the very first American cocktail, created in New Orleans over 100 years ago. It’s indeed gorgeous in its simplicity, stirring rye whiskey, Peychaud’s bitters and a sugar cube, served in a glass that has been washed with Herbsaint and garnished with a lemon peel. But its history is a bit of a sticky wicket.
The first Sazerac House opened in New Orleans in 1852, the Sazerac name was trademarked in 1900, and the Sazerac Company, which just launched a brand new experiential ode to the cocktails in the city, was founded in 1919. The original version traditionally uses Sazerac rye whiskey, though since the brand is now owned by parent company Buffalo Trace, you often see recipes that call for Sazerac rye or Buffalo Trace bourbon.
It gets even more complicated with the Painkiller, a Tiki classic first mixed by Daphne Henderson at the Soggy Dollar bar on the British Virgin Island of Jost Van Dyke in the 1970s with dark rum, cream of coconut, and pineapple and orange juices. After BVI rum brand Pusser’s noticed how popular the drink had become, management trademarked it in the 1980s, proclaiming that the required pour be its brand of dark rum.
All was copacetic until bar veterans Giuseppe Gonzalez and Richard Boccato opened up a Tiki bar in 2010 in New York’s Lower East Side, named it Painkiller and proceeded to put the recipe on the menu—albeit using a different rum. What predictably followed was a lawsuit from Pusser’s, and the bar ended up removing the drink from the list and changing its name to PKNY. But there was a backlash among bartenders around New York against what they believed to be a squashing of their creative flow.
Even today, drink makers can be skeptical at the idea of protecting cocktails at the risk of restricting the freedom to riff and modify. So if a bartender thinks a stirred whiskey cocktail would taste better with X brand of rye, he or she is welcome to add a jigger—just be sure to give it a different name.
“Treat bottles like a chef treats ingredients,” says Kirk Estopinal, a partner at Cane & Table and Cure in New Orleans. “It’s all just flavors, [so] cast aside the illusion of brands, and use your palate.”
Matt Betts, the lead bartender at Revival at The Sawyer hotel in Sacramento, Calif., agrees. “In my opinion, the spirit is supposed to stand up on its own; let the bartenders craft the way they believe works best,” he says. To borrow a kitchen analogy, Betts adds, “The carrot or the onion has no worry of how it’s used; it only matters how the chef uses it.”
The outlier in the group is the Hand Grenade. Available at six Tropical Isle locations, five of which are on New Orleans’ Bourbon Street, this drink is more about the presentation and method of delivery (it’s served in a neon green grenade) than what’s actually in it (rum, juices, sugar and more sugar). Of the four trademarked cocktails, you’d be hard-pressed to find a bartender who’s looking to create a variant on this party potable. Still, the owners don’t kid around, offering a $250 reward to anyone reporting violators or copycats.
Canned Gosling’s Dark ’n Stormy
The end goal of all of this legalese is a peaceful coexistence between bartenders and brands. To make the Dark ’n Stormy consistently easy to serve, Gosling’s released a ready-to-drink canned version in 2012, and Gosling Jr. encourages experimentation with the Gosling’s portfolio of products, including Gold Seal rum and Family Reserve Old rum. As for the original recipe, he views it as way more than just a spicy cocktail but the pride and joy of his family’s homeland.
For his part, Estopinal likens taking creative license with these drinks to baking up an iconic Italian dish. “My mom makes lasagna, and so does yours,” he says. “As long as the one in your house is consistent, it doesn’t matter what happens in someone else’s house.”