Pusser's Rum Discovers the Cost of Trademarking Drink Recipes

Cocktails and Spirits with Paul Clarke

Weekly insight into the world of drinks with Paul Clarke from the Cocktail Chronicles and Imbibe magazine.


It's hard to imagine that fruity, freewheeling rum drinks would be something to get too worked up about. But in the past week, news of a settlement in a lawsuit over one such drink has been resonating through the bar world, and the public-relations disaster the lawsuit has prompted could have repercussions for years to come.

Here are the basics: Last year, New York bartenders Giuseppe Gonzalez and Richard Boccato opened a tiki bar called Painkiller on the Lower East Side. Veterans of craft-cocktail bars such as Milk & Honey, Flatiron Lounge and Clover Club, Gonzalez and Boccato quickly built a great reputation for their new bar, earning a spot on Esquire's list of Best New Bars in America as well as in the hearts of countless Zombie-loving tiki fans.

From the beginning, it turns out, Painkiller had two problems: the first was its name, which it shared with a semi-popular tiki drink that originated at the Soggy Dollar Bar in the British Virgin Islands in 1971. Made with pineapple and orange juices, cream of coconut and dark rum, the drink proved appealing enough that Pusser's, a brand of rum from the BVI, trademarked the recipe—containing its rum, of course—in the 1980s as Pusser's Painkiller.

The second problem Painkiller (the bar) ran into was the drink itself: Pusser's is a mildly funky and somewhat esoteric kind of rum, and Painkiller's bartenders preferred a different character in the drink, so they chose to mix their Painkillers using a rum other than Pusser's.

Pusser's response was predictable. The rum's owners requested that Gonzalez and Boccato change the bar's name and its preparation of the drink, to fall in line with the trademarked recipe; when Gonzalez and Boccato demurred, Pusser's filed suit in U.S. District Court. Last week, news of the settlement broke: Painkiller agreed to change its name to PKNY, and to surrender its web address to Pusser's, and all references to the Painkiller (the drink) were removed from its materials.

What followed could only be considered a very bad week for Pusser's. While the lawsuit was settled in their favor, this small brand found itself a pariah among many bartenders and fans of PKNY. Within hours of the news, several Facebook groups were launched, calling for boycotts of Pusser's rum and an end to trademarked cocktail recipes (these pages had hundreds of supporters within a few days); and bartenders around the country began conducting their own forms of civil disobedience, serving and in some cases advertising Painkillers that are notably not made with Pussers, and posting photos of the menus online as a challenge to Pusser's to sue every bar that ignored the trademarked recipe.

Trademarked drink recipes and lawsuits about them are uncommon, but not unheard of. In the 1930s, Bacardi successfully pursued litigation against bars that prepared the Bacardi Cocktail with other brands of rum; more recently, in 2009 the Bermuda-based producers of Gosling's rum discussed the possibilities of a lawsuit against other rum brands to protect its trademarked recipe for the Dark 'n Stormy.

While these trademark cases may have their merits, Pusser's case is a little bit different. First, according to tiki expert Jeff "Beachbum" Berry, the original Painkiller was made with a blend of rums from Barbados and Jamaica, and not with Pusser's—in fact, Pusser's Rum wasn't even introduced to the market until 1981, a full decade after the Painkiller's debut.

Also, while Pusser's maintained that PKNY's former name and approach to the drink did irreparable harm to the brand, Pusser's hasn't been above ignoring trademark law in the past; last year, a post from Pusser's official Twitter account recommended a Dark 'n Stormy made with Pusser's, instead of the trademark-mandated Gosling's Rum.

The whole issue is more complicated than I can fully go into in a brief blog post, and the repercussions are likely to continue for some time. As Pusser's founder, Charles Tobias, wrote in his response to the outcry on Pusser's website, his is a small brand, importing only around 30,000 cases per year into the U.S. Given the anger of many bartenders to his treatment of the owners of Painkiller, and to what they view as an injustice in that bartenders can be sued for mixing a drink using slightly different ingredients or in a different manner than a trademarked recipe stipulates, there's a good chance this number could drastically drop, and that legal challenges to the laws regarding trademarked recipes could be in the future.

I'm curious to see how this plays out. What's your take on the issue? Should a brand be able to trademark a recipe, and to file suit against bartenders who stray from that recipe? And even if that's legally defensible, from a public relations standpoint, can that ever be a good idea?