Pussers Rum vs PKNY
Much has been written over the last week about the Pussers rum vs PKNY bar (formerly known as Painkiller) legal dispute, and I didn’t initially intend to add to the debate. However, the more I read articles, blogs and tweets, the more I realised that I didn’t agree with a lot of what was being said. So here are my thoughts on the matter.
Pussers are a brand that distill Navy-proof rum in the British Virgin Islands, selling approximately 30,000 cases annually. They ‘own’ a trademark for a drink name ‘Painkiller’, using the definition of an “alcoholic fruit drink with fruit juices and cream of coconut and coconut juice”. A tiki bar in New York by the name of Painkiller opened in May 2010 (to much acclaim) and included in its cocktail menu a drink named Painkiller but not using Pussers rum. Fast forward a few months and after some communication of one sort or another between Pussers and the Painkiller bar, Pussers decide to take legal action against the Painkiller bar for Trademark infringement. The outcome of this is that the Painkiller bar is now known as PKNY, they have surrendered their Painkiller.com website, and had to remove all mention of drinks named ‘Painkiller’ from their menu unless they contain Pussers rum.
The first issue here is whether the Painkiller cocktail should ever have been Trademarked. This is one area where I am inclined to agree with the bartending community who seem to almost universally be of the view that cocktails shouldn’t be Trademarked, on the basis that it limits creativity. Not only is this probably true, but there also seems to me to be the issue that the Trademark is never (to my knowledge) owned by the bartender who created the drink, instead it is the spirit brands who wish to use the drink for marketing purposes. I would have no issue at all with bartenders Trademarking their cocktails but the culture within the bartending industry of sharing recipes and ideas is something that I applaud.
The issue I have is that a lot of people (both within and outside the drinks industry) have taken the view that what Pussers have done by following a legal course of action, is unjustifiable and utterly deplorable. Whilst it is possible that they have been a little short-sighted in their actions, it is also entirely possible that the course of action was the only practical solution to the situation they were in. It seems that many are jumping to conclusions without really knowing the full facts.
From reading the comments of many who have expressed their views on the subject, the issue of whether a cocktail should be Trademarked, and whether that Trademark should be protected are being confused. It doesn’t matter that many people agree that a cocktail should not be Trademarked, the fact is that the Painkiller cocktail was. Pussers were perfectly within their right to Trademark the Painkiller, irrespective of whether ‘we’ think they should have done so.
So if we accept that the Painkiller was Trademarked, however distasteful that may be, the next issue is whether the action taken by Pussers was ‘right’. Not being a legal expert, it is not for me to comment (as some have done) on the legal validity of the Trademark infringement claim; so I think it only fair to assume what they did was legal until anyone proves otherwise. The issue isn’t really whether what Pussers did was ‘legal’ though; the more important issue is whether it was ethically and morally sound, for it is against these criteria that most effect individuals perception of Pussers as an organisation. They key question for me is whether the owners of the Painkiller bar were given a reasonable opportunity to cease Trademark infringement. Pussers certainly claim they were, by asking them to stop serving a drink called Painkiller without using Pussers rum. Of course they would say that wouldn’t they, but what is interesting to me is how in the absence of any statement to the contrary by the owners of PKNY, so many people either assume they were not given the opportunity, or that it doesn’t really matter if they weren’t.
Whatever ‘we’ think about the issuing of the Trademark in the first place, the fact is it was issued. The owner of the Trademark therefore has a right to protect it, and itself against infringement. This is not a technicality to which one can argue “they might have a right to protect it, but they shouldn’t” as some have tried to do. If Pussers rum want to expand their product line by selling items such as pre-mixed cocktails (as I believe they do), then they will need that Trademark in order to protect themselves from competitors. To say that they shouldn’t enforce their rights is simply naive. Pussers, like PKNY, are a business and it is right that they should look out for themselves.
For me, this debate is pretty straightforward. If Pussers went straight for the legal option, giving PKNY no opportunity to cease Trademark infringement, then they are in my eyes a naive and short-sighted organisation that failed to identify the problems that this would cause. If however, the owners of PKNY were given the opportunity but decided against taking it, it is they who are in the wrong. It seems as though some people are cashing in on the fashion for being ‘anti-corporate’ and placing full responsibility for avoiding the legal avenue on the shoulders of Pussers. What if they did try but were rejected? If PKNY were offered the opportunity to reach agreement through using Pussers in their Painkiller cocktail but refused, then it is they who deserve the negative feeling for displaying an arrogance that does nothing to enhance the reputation of the bartending community. The cynic in me says that the owners of PKNY knew this would happen and deliberately refused to cease the infringement on the basis that they would garner so much support from the bartending community and consumers, that a name change and loss of their domain name seemed like a rather good marketing investment!