Without a doubt, the Painkiller is probably the most well known cocktail this year, seeing as how it is the focus point of controversy on the topic of trademarked cocktails.
The Painkiller originated at the Soggy Dollar Bar in the British Virgin Islands, specifically on Jost Van Dyke, in 1971 (Berry 78). The creation is a product of George and Marie Myrick, and was produced with a mixture of Mount Gay and Cruzan dark rums (Ibid). However, now a days, the drink is oftentimes made with Pusser’s Navy Rum; well, not necessarily now a days, thanks to the huge conflict that occurred in June 2011 over the cocktail and its’ trademark as well as the bar Painkiller New York, now known as PKNY. While the lawsuit had been started in April, the result in June led to rapid involvement online at the outcome of the trial.
This cocktail is the forefront in terms of questions about what it means to copyright a cocktail, or rather, trademark the name of a cocktail, since recipes cannot by patented according to law. In the case of the Painkiller, the bar owners Giuseppe Gonzalez and Richard Boccato were sued by Pusser’s on account that they were damaging the brand. The focus of the lawsuit was to change the name of the bar and website, and stop serving the drink called Painkiller at the bar without the use of Pusser’s rum; this lawsuit encouraged rapid assemblage of bartenders, liquor industry members and cocktail enthusiasts to react negatively to the actions of Pusser’s. A general sentiment within the cocktail community is that Pusser’s rum should be boycotted, with the sentiment being propagated through online mediums and networking sites such as Facebook, as well as blogs, in order to give a sense of the rage that is felt at Pusser’s for enforcing something that seems quite absurd.
And rightly so. Pusser’s trademarked several things with the name Painkiller, part of which was for advertising purposes, but another trademark was for “alcoholic fruit drinks with fruit juices and cream of coconut and coconut juice.” This trademark is questionable, since it presumes that any drink, following with those ingredients, is therefore in violation of the copyright. It doesn’t say anything about the type of rum. The point of this trademark was so that Pusser’s can start selling premade mixes for Painkiller cocktails which isn’t something that many bartenders would condone, since it works directly against he rebirth of cocktail culture and brings us back toward the dark era of potations.
The reactionary attitudes of bartenders and the rapid dissemination of a large feeling against Pusser’s and in general copyrighted cocktails, brings up points of discussion and focus within the liquor community. The assemblage of social interaction and a generalized identity within bartenders and the entire liquor community seems to be an interesting phenomena, since it ascribes itself quite easily and readily to prospects of community. The community of the bartenders is both physical, in and of the exchange and movement of bodies from place to place across the country for trade shows and competitions, as well as plain old tourism, but also virtual, thanks to the use of online mediums; in either case, the community does have a physical embodiment, but still ascribes to being an imagined community, established through rhetoric devices, most probably related directly to the free speech and ease of speech found in online space, as well as how online sites such as Facebook, Twitter, or blogs serve as sites of publication and exchange, as a la minute books printed through digital mediums. The exchange of ideas here, and the rapid exchange, contributes directly with a national-global even-community within professions and interests that would not have previously existed without the availability of such virtual mediums or quick, global transportation. And the fact that a community can be established from this, is indicative and provably related directly to the idea that expertise is found within the community, and is therefore a form of new found technical and artisanal knowledge that has not existed, on a global level, beforehand.
The other point of discussion is trademark and copyright law. In Japanese culture, there are jokes that American’s sue each other for every little thing, and in many cases this is rather accurate. This liberal world in which we live is driven by proprietary information and profit, and so patents are an easy way to product knowledge and the value of capital. But for drinks, which cannot be copyrighted, and with other cocktails which have similar dilemmas in terms of specific brands of a spirit being called for in the recipe (both the Dark and Stormy and Bacardi cocktail come to mind), there is a major problem when cocktails are copyrighted even though there is little claim or validity to do so, as is the case for the Painkiller cocktail, which was not created at all by Pusser’s. The act of copyrighting these drinks is an attempt to garnish profit by having a constant demand for the specific ingredient, but that flies in the idea and rising movement and trend in bars throughout the United States to create artisanal or craft cocktails, as well as exploring and experimenting with the drinks, as a chef would. The rise of bar chefs encourages experimentation, which is in part a response to the idea that mixology is a practiced skill that demonstrates both artistic and expert knowledge related to the execution of the drink. When moving into drinks that are produced according to one specific recipe, there is little room for a profession to grow, and so copyright in this case stifles the expert dimensions of the community, something which arguably is of rising importance when this global bartending and cocktail community derives an imagined shared community and intrinsically is linked and influences the ethos and praxis of the bartender.
Regardless of how we treat this, the entire dilemma is one of trademarking, not one of copyright, and so bringing up the bar as the focal point of their judicial assault was an unwise move on part by Pusser’s. It only helped ostracize them from the community as a whole, and their effort to have PKNY change their name and stop serving their drink is moot, since the types of people who would visit the bar, are not ones which would tend to purchase ready made cocktail mix for the Painkiller. Instead of spending time suing, and providing unneeded, poor, publicity, the company would have been better off marketing their cocktail mix to the market which would consume it and think it was good. And cocktails, especially ones which do not have a name brand in the name of the drink, seemingly shouldn’t be trademarked, and even that is a fine line especially if the drink was not made by the company itself as a way to sell more of their liquor. The approach that St Germain uses, as well as several other companies, in which the spirit company publishes or spreads cocktail recipes that were created by craft bartenders to showcase the ingredient, is a much better route to increasing market share than litigation or trademarking ever will be.
4 ounces unsweetened pineapple juice
1 ounce orange juice
1 ounce Lopez coconut cream
2 1/2 ounces dark Jamaican rum (or Pusser’s if you want to abide by the trademark)
Shake the ingredients with crushed ice, and pour into a tall glass or Tiki mug. Finish with cinnamon and nutmeg, and optionally garnish with cinnamon stick, pineapple stick or wedge, and/or an orange wheel.