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In 2011 a newly opened New York bar, Painkiller, was issued a cease-and-desist order by Pusser’s Rum, which claimed that its trademark on the Painkiller cocktail prevented the bar from using its name. The suit sent a shiver through the cocktail world and since then, the confusion over legal ownership of popular and bespoke cocktails has continued to hang over the industry.

Determining who owns the rights to what parts of a cocktail, especially amongst professional cocktail-slingers, is a strange balance of legal precedent and professional courtesy.

So, are you going to be sued because you poured one too many Singapore Slims? Intellectual property lawyer Jake Grove says that although a recipe can be copyrighted, there are few if any legal penalties for selling a drink made from that recipe.

A trademark might apply to a single-named drink with specific ingredients such as Pusser’s Painkiller, but despite a few unsuccessful lawsuits by companies attempting to enforce trademarks on their own creations, there has been little success getting bartenders to stop slinging their Slims.

In 2014, a US rum company sued liquor conglomerate Pernod Ricard for suggesting that their Dark n’ Stormy be made with Malibu Island Spiced Rum rather than the rum the trademarked recipe included. In this case, it was the recipe that was the issue, not the cocktail itself.

It may also depend on what type of employment the bartender who creates a cocktail is under. If a bartender is hired full-time at one bar, it’s to be expected as part of their work performance that they would create new drinks – which belong to the bar. If one is hired as a consultant, a practice common in new high-end cocktail bars creating a new menu, that consultant might have more rights to the drinks they come up with, and could even take them with them to the next gig.

For some bartenders, the debate over who owns a creation is less academic and more personal. Juan Castillo, a craft cocktail barman and the founder of New Cask NYC, has decided that he isn’t always willing to share his best drink creations for free. As a craft cocktail barman, he’s gradually held back on some of his best ideas, saving them for a more personal—and profitable—event.

When Castillo created a few popular drinks for a bar and then left, the bar kept them on the menu. That did not sit well with him.

“Eventually, I realised that I had very good ideas that I may want to save for whenever I opened my own place,” he said. “It made me feel like I did something nice, and the money went into someone else’s pocket. So it may be a little more personal. I’ll still help creatively, but I’ve decided to hide some of my stuff.”

Castillo learned his lesson. “I will contribute with the recipes of the drinks, but I wouldn’t tell them the syrup recipe,” he says.

Professional courtesy demands that if one bartender is re-creating another’s drink, they acknowledge that at least verbally when serving it. Fortunately, the legalities of the high-end cocktail world don’t apply to your pop-up tiki bar next to the pool. In most instances, the origins of our favourite cocktail are not that clear.

Take the Cosmopolitan for instance. The origins of this drink are often credited to the gay community in the 1970s, while some say it appeared for the first time in a 1903 publication called Pioneers of Mixing at Elite Bars as “Cosmopolitan Daisy”. Even a bartender named Patrick “Paddy” Mitten has been credited with bringing the drink to New York City in 1987.

Who knows which maverick bartender created the Cosmopolitan? What we do know is how to make it: vodka, lemon juice, triple sec, and Fitch & Leedes Cheeky Cranberry.

Or why not create your own unique cocktail with one of their bespoke mixers? Just don’t be stingy with the recipe.

 

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[source:fastcompany&wikipedia]