My friend Jacob Grier, who splits his time between writing and tending bar, draws my attention to a brewing (so to speak) conflict over the trademark for a mixed drinked called the Dark and Stormy. Rum manufacturer Gosling has the trademark on the term, and insists that it can only be used to describe drinks containing Gosling’s own rum. They were none too happy when a competitor, Zaya, started running ads in Imbibe magazine urging bartenders to substitute Zaya’s rum when mixing a Dark ‘n’ Stormy. Jacob’s take on this seems spot on:
Gosling’s might be on solid legal ground, but as a craft bartender I’m firmly on the side of Zaya. I use Gosling’s in a Dark ‘n’ Stormy because it tastes good, but it’s hardly written in the fabric of the universe that no other rum pairs so perfectly with ginger beer. If another rum company thinks they’ve made a product that’s even better, I want them to tell me about it. Using unique ingredients in classic cocktails is part of what makes tending bar creative.
One of the interesting things about this dispute is how deeply confused non-lawyers are about the various legal regimes commonly described under the rubric of “intellectual property.” Jacob also links to this article about trademarks in the bartending business that’s a particularly egregious offender. The article is talking about trademarks, but the author treats the terms “patent,” “copyright,” and “trademark” as though there were interchangeable. They’re not. To quickly recap: copyrights apply to expressive works like music, books, movies, and software. They’re granted automatically and last for the life of the author plus 70 years. Patents cover inventions like light bulbs and transistors. They require a lengthy and expensive application process and last for only 20 years. Trademarks protect brand names like “Coca-Cola” and “Nike” (and “Dark ‘n’ Stormy”). They’re relatively easy to get, and they last forever.
I’ll spare you any more of the boring details. But perhaps the most important difference is that trademarks have a dramatically different policy rationale from patents and copyrights. Copyrights and patents are designed to create legal monopolies that drive up the price of creative works and thereby reward authors and inventors for their creativity. Although consumers may benefit from the resulting increase in creativity, the short-term effect is to force them to pay more than they would in a competitive market. Trademarks aren’t like that at all. The point is not to limit competition. To the contrary, the point is to enhance competition by ensuring that consumers know what they’re getting. This is why it’s emphatically legal to run comparative advertising featuring your competitor’s trademarks. Microsoft may own the “Windows” trademark, but Apple is free to use it as a punching bag as long as they don’t mislead consumers about what they’re getting.
The same principle applies in the Dark and Stormy case. The point of trademark law is to make sure consumers know what they’re getting (whether it’s Gosling or Zaya), not to give Gosling a monopoly on the concept of mixing ginger beer with rum. I haven’t seen Zaya’s ad and I’m not a trademark lawyer, so I don’t want to speculate on the legal merits of Gosling’s position. But certainly the apparently purpose of Zaya’s ad—encouraging bartenders to substitute their own rum in place of Gosling’s—is entirely within the spirit of trademark law. If the net effect of Gosling’s threats is that consumers wind up with fewer opportunities to try mixing ginger beer with different kinds of rum, that is certainly not what trademark law is supposed to accomplish.
Unfortunately, this doesn’t seem to be widely understood among the general public. And as a consequence, when a company claims that its trademark gives it broad powers to control how certain words are used, many people believe them. As a result, a legal regime that’s supposed to be about protecting consumers from fraud winds up protecting producers from competition, to consumers’ detriment.