Serious Cocktails: The Dark 'n' Stormy Showdown of 2009
"Should cocktail recipes be legally limited to a particular product or brand?"
In case you thought bibulous brand-battles were limited to Coke vs. Pepsi, take a look at the storm that's brewing regarding the venerable rum drink, the Dark 'n' Stormy.
As Jonathan Miles noted in his New York Times Shaken & Stirred column last month, the Dark 'n' Stormy is made with Gosling’s Black Seal rum and ginger beer—that's it. But this level of specificity isn't a case of brand placement. Gosling’s filed two trademark certificates that dictate the precise ingredients in a Dark 'n' Stormy, and needless to say, one of those ingredients is the company’s signature brand of Bermuda rum.
During an interview with E. Malcolm Gosling, Jr., whose family owns the brand, Miles pointed out that a recent advertisement in Imbibe magazine suggested preparing the drink with Zaya, a brand of rum formerly distilled in Guatemala, now made in Trinidad.
“Now I have to pursue that,” was Gosling’s response, adding, “they’re really just trying to cheat and to capitalize on our investment.”
Miles notes that limiting a drink to one specific brand runs counter to typical practice behind the bar, in which bartenders freely alter drink recipes to suit their needs and customers' preferences. “Drinks like this one undergo something like a wiki process: a tweak here, a substitution there, and the drink is reimagined,” Miles writes.
On Monday, Zaya responded to Miles’ column with a prepared statement that read:
Zaya Rum fully supports Mixology as an artform [sic]. By imposing a trademark or patent on a cocktail recipe one is suggesting to undermine a Mixologists’ artistic freedom. We applaud bartenders who put their personal thumbprint on a libation as an integral part of the artform; it’s what creates a recipe in the first place.
While it’s unclear if the Great Dark 'n' Stormy Showdown of 2009 will ever make it beyond press releases and posturing, it should be noted that legal battles over similar issues have happened in the world of mixology.
During the 1930s, the Bacardi Cocktail—made with lime juice, grenadine and Bacardi rum—became so popular that Bacardi pursued litigation against bars that prepared the drink using other types of rum. Granted, the Bacardi cocktail has the brand as part of the drink name, while the Dark 'n' Stormy does not.
I'll be curious to see how far Gosling's pursues this, and whether they go to the level of involving non-Gosling's pouring bartenders in their case (and if you're one of those who mixes a Dark 'n' Stormy with a good dose of lime juice, as I do, then you may want to call your lawyer). What’s your opinion? Should cocktail recipes be legally limited to a particular product or brand? Or is it your drink anyway you like it, even if that calls for straying from the letter of the law?
Related: The Dark 'n' Stormy recipe
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8 Comments:
How in the world would you enforce that trademark? Every liquor company has recipes on their website - are all of those going to be trademarked too? Will bars be required to use only Smirnoff when I order a Screwdriver? Will the bartender have to refuse if I ask for a "Screwdriver but with Hangar One instead of Smirnoff"? I suppose I'd have to ask for "orange juice with Hangar One vodka" and hope no cops are around.
arjava at 5:16PM on 08/05/09
I don't know if goslings needs to legally trademark their part in a Dark and Stormy, but I definitely agree that it makes for the best Dark and Stormy around. Just reading this has reminded me to pick up a couple bottles of ginger beer in the near future and mix some up.
dennisharvey at 5:52PM on 08/05/09
Red Bull has successfully been able to enforce their trademark on bars who have advertised RB in drinks and substituted a competing product (http://www.ipwatchdog.com/2008/05/02/red-bull-wins-trademark-lawsuit/id=169/).
They've been able to do this as their drink is ONLY distributed in cans and can easily be seen if the energy drink is coming out of the cocktails gun or from another brand's can.
I completely endorse Gosling's pursuing this if a bar specifically advertises the drink as a Dark and Stormy.
nerditry at 7:17PM on 08/05/09
I'm a firm believer that Gosling's is the rum you should be pouring for an authentic Dark and Stormy but there's still room for a flourish or two. I think a lime wedge is called for, and sometimes I'll add a ginger-lime syrup and a dash of Angostura.
BTP at 7:42PM on 08/05/09
Sorry folks, if you know anything about trademarks you know this ain't never gonna fly. Bacardi tried pulling the same nonsense with the Cuba Libre (and I believe the Mojito as well)--and they tried to jack the Havana Club label from Pernod. What's with these rum companies anyway?
Furthermore, trademark battles in these instances stifle creativity. Plus, Zaya actually tastes better, though perhaps authenticity may steer you toward Gosling's.
Lastly, if someone wants to make a Dark and Stormy with friggin' Guinness and vodka it's their god damn right...although I wouldn't recommend doing so ;)
Paystyle at 8:29PM on 08/05/09
Someone may want to tell Bundaberg rum about it... they have been selling it premixed in Australia for almost 20 years...
nitsuj at 9:09PM on 08/05/09
I am glad to see that the Dark'n Stormy is getting some press, however I think some are missing the point. I am the Brand Director for Gosling's Rum in Bermuda and an enthusiastic mixologist. We are not attempting by trade marking the Dark’n Stormy to discourage anyone mixing Rum with Ginger Beer. To my knowledge we have never told anyone not to mix there Rum with Ginger Beer.
I appreciate your comments on the Patent, Copyright and Trademark, which are all correct. Dark'n Stormy is a trademark belonging to Gosling's and here in Bermuda we sell a RTD version of the cocktail available in a 12 oz can, as well as cakes, jams and sauces all bearing the Dark’n Stormy name and trademark.
You raise a good point about competition. Competition is great for the consumer and the consumer wants to know what he is getting. By trade-marking our drink we are NOT limiting competition, in fact we encourage it. Ginger Beer is very popular in Bermuda and locals mix all sorts of spirits with it including a variety of other Rums. However if someone orders a Dark'n Stormy they are expecting to get Gosling's Black Seal Rum and Ginger Beer. Quite simply if it is another Rum and Ginger Beer, Zaya for example it is not a Dark'n Stormy therefore they must come up with another name.
Having not seen the Zaya ad either, you are correct in stating technically they can encourage consumers to try Zaya Rum and Ginger Beer rather than having a Dark’n Stormy, they just can not call their creation a Dark’n Stormy. Perhaps call it the Z-Storm or something like that.
We have had similar issues with Cruzan Rum, another brand that we import to Bermuda. In trademark litigation we never threaten a company it is just simply a cease and desist using the name Dark’n Stormy for your Rum and Ginger beer. Get the creative juices flowing and come up with your own name for Rum and Ginger Beer. Trademarks do not stifle creativity rather encourages it.
The Jamaican Mule is a great alternative if using a Jamaican Rum. Moscow Mule is Smirnoff and Ginger Beer and it was the cocktail that started the vodka revolution in North America. The reason others are trying to use the name is simply they are trying to capitalize on the investment Gosling’s Rum has made on the cocktail and the fact it is a cool name. Prior to Gosling’s marketing the Dark’n Stormy outside of Bermuda, Ginger Beer was relatively unknown in the united states and certainly not considered as a cocktail mixer in recent years.
Dark’n Stormy is not a commodity product, it is an original cocktail creation in Bermuda using Gosling’s Rum and Ginger Beer. When you order a Rum and coke you will get whatever Rum the bartender feels like pouring. That is why Bacardi is training there consumers to call it by name Bacardi and Coke. The bartender would not substitute Rum if the consumer asks for Bacardi and Coke, therefore why should anything but Gosling’s Rum be substituted for the Dark’n Stormy.
If Bacardi could prove that the original Mojito and Daiquiri was indeed made with their Rum then would have a chance at getting the trademarks to those names, however they can not. It is difficult to enforce a trademark; however Gosling’s Rum have been doing it for the past several decades.
99.9% of the time when the consumer is not using Gosling’s Rum in the Dark’n Stormy it is not intentional it is because they do not know any better. Therefore we can not be upset with them, however try to educate them about the history of the cocktail and the fact that we have a trademark for the name. Articles like what appeared in the NYT and the various blogs as a result are a great step in beginning to educate the consumer and industry professionals alike about the Dark’n Stormy.
Bundaberg Rum from Australia also has a trademark. There is a story behind this and in fact Bundaberg has the rights to the name Dark’n Stormy, however only in Australia. Every year in November Bermuda plays host to the World Rugby Classic which sees a team from Australia come to Bermuda every year to compete. The Classic has been in existence since the early 1970’s and it was the players who took Bermuda’s National Drink, the Dark’n Stormy back to Australia where Ginger Beer and Rum was also popular. Therefore Bundaberg trademarked the drink in Australia before Gosling’s Rum did. At the moment Gosling’s Rum is not distributed in Australia therefore it is not an issue. However Bundaberg can not promote the Dark’n Stormy with Bundaberg Rum outside of Australia.
The Dark’n Stormy has encoraged several mixologist/bartenders to be creative. An example is the perfect storm, simply a Dark’n Stormy with the addition of pineapple juice, or one of my favorites is the Gold Mint, which is the Gosling’s Gold Bermuda Rum, Ginger Beer and a drop of Crème de Menthe. So my advice to other Rum producers if you want to jump on the Ginger Beer band wagon you had better get creating and come up with your own name for the cocktail. The Dark’n Stormy is a Bermuda Original and the trademark offices agree.
stormy at 2:40PM on 08/18/09
Harrumph!
Actually, Stormy is winning me over. I just like harrumphing. And kudos to Goslings for creating a bit of free press and attention.
The only times I’ve seen a Dark ‘n Stormy on a menu it stated that it used Goslings AND the type of ginger beer. Most of the Dark ‘n Stormy drinks I’ve consumed have been in my own abode using Gosling’s Black Seal (only). But I think most people would have a problem with the type of ginger beer I’ve used! I haven’t used homemade (too lazy so far to try), diet on many an occasion, one high-fructose corn syrup brand…
Ah, the passion for booze, it’s a beautiful thing.
JerseyRED at 9:51AM on 09/02/09