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Should cocktails be trademarked?

As increasingly innovative cocktails are created around the world, is it becoming more important for bars to protect their recipes, even by trademarking them?

The Dark ‘N Stormy is one of a few trademarked cocktails in the world

The issue of trademarking a cocktail has long caused much debate in the on-trade. Are you trademarking the name, recipe or both?

Among those that have successfully trademarked their creations is the Dark ‘N Stormy, the Painkiller, the Sazerac and the Hand Grenade.

One of the most famous examples, the Dark ‘N Stormy, is owned by Gosling’s rum, and made with Gosling’s Black Seal Rum, ginger beer and lime.

The most important thing to consider about trademarking cocktails is that it is the name of the serve that is protected under law, not the ingredients.

However there are so few trademarked cocktails out there, that it poses the question whether the complicated process is even worth the time and effort it requires.

With this in mind, we asked two industry experts whether bars should trademark the drinks they invent or whether there is little need to claim or protect their creations.

Over the following pages we present two opposing views on the topic.

Earl Bernhardt, co-founder of Tropical Isle, New Orleans

I started Tropical Isle in 1984 with a stand at the World’s Fair, which was hosted in New Orleans that year.

We became a big hit with all the college students, and every Saturday night, my partner, Pam Fortner, and I would sit in front of the bar on Bourbon Street and see everyone walking with a Hurricane. This was the drink of the time and we said that we had to do something that could compete.

We thought it had to be strong and we wanted it to be green, like the military, and we came up with the name Hand Grenade. After a period of experimenting and testing, we had come up with a recipe we were happy with.

The Hand Grenade is made up of 13 ingredients; we keep them all a secret and over the years it has become a big, big hit. We only sell it at our locations and we serve it on the rocks, frozen. We also have a skinny version and we have the Hand Grenade Martini.

When we first made the drink, in 1985, one of our clients was a lawyer who had graduated from Tulane Law School in New Orleans. He was in the field of trademark law and he talked us into trademarking the Hand Grenade.

At first, I didn’t think that much about the idea, but I went along with it. Today, I think it has become the best thing that we have ever done.

The Hand Grenade is so popular and everyone wants to serve our cocktail, but they can’t because it’s trademarked. The only place people can buy this drink is in one of our bars.

We defend the Hand Grenade here in New Orleans and all over the country. Any bar that’s selling the Hand Grenade will get a cease and desist letter, and if that doesn’t work then we would take it to court. Over the years, hundreds of bars have tried to sell the Hand Grenade and we have had to sue some in court, but we’ve won every case.

If a bar comes up with a drink that is unique and it becomes extremely popular, then I’d say it would be important to trademark it. Although it’s been rather expensive to go through the trademark procedure it has been worth it for us and it could be for any bar with a unique, popular drink.

Michael Madrusan, owner of The Everleigh, Melbourne, Australia

At The Everleigh, we release a new menu every six weeks, it features a combination of classic cocktails and new house creations.

When we make a new menu, bartenders will present their drinks one by one, and the team gives their thoughts and feedback. Bar managers then come to me with their top picks and we see if any specs need tweaking before we put the final list together. It’s great fun.

While designing new house drinks, we do our research in a bid to find out if there are similar drinks already out there. If we see a void that needs to be filled, we set out on a mission to come up with something that suits.

While we absolutely encourage creativity in our bartenders and are constantly revising existing specs and trying out new drinks, the core of our training teaches that the majority of new drinks derive from a classic cocktail.

These classics act as a template, and all similar successors are considered to be variations. Based on this theory, no Everleigh house creations are entirely new or unique, and as a result we see little need to claim or protect them.

While we respect the variation in its own right, and enjoy making and serving something new and different, we also relish the chance to pay homage to the ‘mother’ cocktail that it was inspired by.

Based on the premise that a successfully trademarked cocktail must be so thoroughly controlled that it becomes exclusive to the bar in which it was created, trademarking cocktails would have a significant impact on the hospitality industry.

For example, if the Savoy Hotel was to trademark the Martini, we could no longer enjoy a Martini at any other bar. God forbid.

Allowing bartenders to make each other’s drinks brings the international hospitality community ever closer. It makes us feel more connected and it’s truly wonderful to be able to cater to guests in that way. I see no reason to keep recipes a secret. If you tell us you like a drink and want to try it at home or in your bar, we’ll write down the spec for you. Everyone has the right to drink great drinks, we see no need to control or restrict that.

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