Dark 'n' Legislated: Trademarked Cocktails Have Complicated Legacies

What value lies in trademarking a cocktail? It depends who you ask.

Tropical Isle, a chain of bars in New Orleans, is the only place you can get a Hand Grenade®. There’s pride in the ubiquitous nature of the drink in the city. “Every single Hand Grenade you see littering the streets of New Orleans is from one company,” proclaims Tropical Isle’s website.

The pristine sanctity of a Hand Grenade, which Tropical Isle describes as a “melon flavor drink” with “lots of liqueurs” and “other secret ingredients” is dubious at best. But when it comes to other trademarked cocktails like the Dark ’n’ Stormy, Sazerac or Painkiller, integrity is often cited as the need for the drink’s legal designation.

Hand Grenade cocktail — A Hand Grenade® cocktail from New Orleans’ Tropical Isle chain / Courtesy Bourbon and Leaf

Thanks to the trademarks, these cocktails must be made with certain, brand-name ingredients. Gosling’s Black Seal Bermuda Black Rum must be added to a Dark ’n’ Stormy. Sazerac Rye Whiskey is required for a Sazerac. Pusser’s Rum is mandatory for the Painkiller. Otherwise, they are merely cocktails inspired by the originals.

To the average person, this probably doesn’t matter very much. The trademark holds more weight to businesses, which may be penalized for having made a Sazerac with any other rye.

A trademark owner can issue a cease and desist letter to any establishment that doesn’t abide by the drink’s specifications.

Malcolm Gosling Jr., of Gosling’s Rum, says it’s rare that the brand resorts to a cease and desist, but the company will protect its rights.

“In order for a trademark to be effective, it must be maintained,” says Gosling. “If the cocktail is misrepresented on a menu, we have found it is often an awareness issue. We will work with an account to fix the incorrect listing.”

“The trademark not only protects the integrity of the cocktail, it protects the consumer by ensuring they are actually getting a Dark ’n’ Stormy.” —Malcolm Gosling Jr., Gosling’s Rum

But it’s virtually impossible to know how many people might be infringing upon your trademark, says attorney David Postolski. He specializes in intellectual property and patent law, and he’s worked on a slew of food and drink patents.

In spite of this, the few brands that have stayed devoted to their trademarked cocktails believe it’s crucial for maintaining the integrity of the drink.

“The trademark not only protects the integrity of the cocktail, it protects the consumer by ensuring they are actually getting a Dark ’n’ Stormy,” says Gosling.

For a brand owner, there’s confidence in having a strong, recognizable product, though Postolski warns that it can lessen with time.

“The more your [trade]mark becomes generic, the more it loses power, becomes diluted,” says Postolski.

Sazerac cocktail — Sazerac Rye Whiskey is required for a Sazerac / Getty

This could explain why Jillian Vose, bar manager and beverage director at New York City’s The Dead Rabbit, can’t rattle off the short list of trademarked cocktails. None are on The Dead Rabbit’s bar menu, though Vose is familiar with their basic formulations. She’ll often use a classic cocktail’s template to create a more modern interpretation.

The bar’s take on the Dark ’n’ Stormy, for example, is crafted from ginger syrup, fresh lime juice, Gosling’s and soda water.

And if she doesn’t have Gosling’s? “I would use another blackstrap rum,” says Vose. She doesn’t believe the average person would detect the difference.

Vose means no disrespect to these classic trademarked cocktails. She respects them and the general way they’re supposed to be made, she says. All she really cares about is how the drink tastes.

That’s what the liquor companies that hold the trademarks claim, too.

“You can make [a Painkiller] with Bacardi silver,” says Gary L. Rogalski, president/CEO of Pusser’s Rum, but “it’s not going to taste like the Painkiller as we know it.”

Likewise, Gosling says, “you can make a Dark ’n’ Stormy with another rum, but it will completely change the drink. Not to say it changes for the worse. The main thing is, it does change.”

Daniel Djang, founder of cocktail and spirits blog Thirsty in LA, says he will gladly enjoy a Sazerac made with the city’s “official” specs with Sazerac Rye, Herbsaint and Peychaud’s when he’s in New Orleans at a landmark bar such as The Sazerac Bar or The Carousel Bar.

And yet, “with today’s wide range of ryes, anise liqueurs and aromatic bitters, why should bartenders be limited to what one brand calls for?” says Djang. “Myself, I like bottled-in-bond workhorses like Old Overholt and Rittenhouse.”

“People don’t realize the responsibility of having a trademarked drink.” —Gary L. Rogalski, Pusser’s Rum

Djang says he’s had countless Sazeracs, but he seriously doubts they were always made with Sazerac Rye.

“Will Sazerac swoop down on every bar that doesn’t use their product in the Sazerac?” says Djang. “Hasn’t happened as far as I know.”

Sazerac did not respond to a request for comment.

Pusser’s, on the other hand, swooped down on a New York City bar named Painkiller in 2001. After Pusser’s discovered the bar’s namesake drink was not being made with Pusser’s, the bar was forced to change its name. This garnered ill will in the bar community, according to Djang. A slew of publications covered the suit.

“Was it worth it?” asks Djang. “You’ll have to ask Pusser’s.”

Dark 'n' Stormy cocktail — A Dark ‘n’ Stormy cocktail must be made with Gosling’s Black Seal Bermuda Black Rum / Getty

Rogalski defended Pusser’s position. He cited the integrity of the drink: four parts pineapple, one part cream of coconut, one part orange juice and however much rum you like.

“People don’t realize the responsibility of having a trademarked drink,” he says.

Perhaps the responsibility hints at why there aren’t more trademarked drinks. Creativity around cocktails may be another.

“Cocktails with spirits-only ingredients like a martini or Manhattan should be stirred, and you shake drinks with citrus like the daiquiri or margarita,” says Djang. “But there are countless options for the base spirit and other ingredients, as well as their ratios.”

Different versions of a daiquiri, margarita or even a Negroni can be fun and a little personal, too.

There’s “marketing genius” behind trademarked cocktails, says Vose, who maintains she just wants to make the best-tasting drinks she can. She’d prefer to put a saline tincture in the margaritas she serves, but says she’ll do a traditional salt rim if a customer wants it.

“The pretentious bartender is a thing of the past,” says Vose.