You can’t copyright a cocktail, so what’s a creative bartender to do?
You can’t copyright a cocktail, so what’s a creative bartender to do?

          
          
"It makes sense to people in Washington DC—'This is a drink, we can trademark a drink, Class 32 Beverages, a-ha!,'" Mealey says. "It's a specific kind of rum with a specific ginger beer—this is a Dark 'n' Stormy."
Once more: Trademark v. copyright
Copyrights essentially protect creative works: books, films, songs, software, etc. On a basic level, trademarks protect the brands—words, logos, symbols that "distinguishes the source of the goods of one party from those of others," as the USPTO phrases it. The Game of Thrones books and scripts are definitely copyrighted; the show's logo is trademarked (and, theoretically, couldn't be used by political campaigns to sell merchandise, for instance).
While a book of recipes can be copyrighted, Mealey notes that it's the totality of what the book encompasses—the info, the prose, the layout, the imagery, the name—being copyrighted, not an individual drink recipe. That's why many recipe books have a daiquiri, but those published daiquiris don't look and read the same as the specific one found in the PDT Cocktail Book, for instance.


And while applying for a trademark is relatively easy and inexpensive (comparatively for most legal processes), Mealey says the key to maintaining it is showing a willingness to defend that trademark. Gosling's has done just that throughout the years. The rum makers famously took legal action against the second-biggest alcohol company in the world, Pernod Ricard, back in 2015. Pernod had posted a recipe for a Dark 'n' Stormy to its website, but it used Malibu Rum rather than Gosling's. Eventually, Pernod opted to settle and entered into an agreement with Gosling's preventing a future Dark 'n' Stormy storm.
Not every trademark defense ends with legal action, of course. Mealey says she likely gets three notices a week about restaurants or in-flight menus, and often these just spark cease and desist letters. (Gosling's in the past had sent C&D letters even to bloggers.) The trick now, at least from the company's perspective, is striking the right balance between muscle and market opportunities. If a bar pushes Dark 'n' Stormy drinks with the wrong rum, for instance, can a letter encourage them instead to use Gosling's? A new consistent customer represents a better outcome than a legal fight. (Panelist Daniel Eun, an attorney/bartender formerly of PDT, knows that first hand—he helped open a bar called Painkiller in NYC, which quickly heard from Pusser's Rum. Eun's bar eventually became PKNY and certainly opted to carry different rums.)

          
                  