Thursday, June 9, 2011

Pusser's Rum Brings the Pain to Painkiller

In its single year in business, the Lower East Side Tiki bar Painkiller has arguably achieved greater name recognition than any other new tavern that has opened in the last 12 months. Constant press and regular accolades have been its lot. Question cocktail enthusiasts in Portland, Atlanta or Los Angeles and they're recognize the word as not only the name of a classic Tiki drink, but also the instantly classic Tiki bar that took the drink for its name.

But the bar's legal reign as Painkiller has come to an end. Owing to a federal law suit brought by Pusser's Rum Ltd., the bar will be henceforth know at PKNY. Pusser's has also demanded that Painkiller turn over its website address and stop selling the rum concoction know as Painkiller (which, according to them, has to be made with Pusser's).

Where does a British Virgin Islands rum manufacturer get off telling a Manhattan bar what to do? Well, it seems the 31-year-old company holds two U.S. trademarks, one for "alcoholic fruit drinks with fruit juices and cream of coconut and coconut juice," and one for "non-alcoholic mixed fruit juices," which they market as "Pusser’s Painkiller Cocktail Mix"—a product I have no familiarity with, and which, I'd hazard a guess, is far less known among cocktailians than is the Painkiller bar. 

According to the Lo-Down site, in the lawsuit filed April 12 in U.S. District Court, plaintiff Pusser’s Rum Ltd., "sued tiki bar owners Giuseppe Gonzalez and Richard Boccato, claiming irreparable harm to its brand, unfair competition and unfair business practices, according to court documents on file in the Southern District of New York." 

That Pusser's successfully copyrighted the Painkiller cocktail name is a curious thing. According to Tiki expert Jeff Berry, the Painkiller (a blend of pineapple juice, orange juice, coconut cream, rum, cinnamon and nutmeg) was invented in 1971 by George and Mari Myrick of the Soggy Dollar Bar, in the British Virgin Islands. Jerry O'Connell, who currently owns the Soggy Dollar, told Berry that the Myricks originally made the drink with Mount Gay and Cruzan dark rums. But now Pusser's—founded a decade after the drink was created—is the official, legal rum of this libation. Because of Pusser's legal action, Berry himself initially thought the company invented the cocktail.

Pusser's may have won the battle here, but it may lose a very long, painful war. It's legal strongarming of Painkiller has already inspired some bad blood within cocktail circles. Gonzalez and Boccato are extremely popular figures in the cocktail world, and their friends are faithful. Within hours of the announcement of the bar's forced name change, various bartenders and industry figures proclaimed on Facebook their antipathy toward Pusser's, and said they were thinking of boycotting the rum.

There is also a Facebook page called "Bartenders Against Pusser's Rum." At press time, it had 90 members. UPDATE: There are 250 as of 4 PM ET. Also, the page has changed its name to "Bartenders Against Trademarking of Cocktails." There is, however, a newer Facebook community called "Bartenders and Cocktailians Against Pusser's Rum." It has 70 people who "like" it as of 5:30 PM. The Pusser's Rum Facebook page, meanwhile, has 76 members.


Noelle said...

Oh, there's a facebook group now, to boycott Pusser's.
Pusser's is kind of ridiculous.
Especially since the drink is older than the company.

Anonymous said...

Just to clarify - Pussers has only been available commercially since 1980 but has been around since 1640, as a daily ration to members of the BRN.

Robert Simonson, "Our Man in the Liquor-Soaked Trenches"-New York Times. said...

You are correct on the history. But it's the company Pusser's that brought the lawsuit.

Justin said...

The rum was not "pussers". The ration was given out by the ships "purser" which was slanged into "pussers" there was no specific rum rationed. It often varied depending on which port the ship had just come out of. Thanks to the anonymous quote from a likely pussers employee. More like pussy rum! I mean really. Was PKNY really hurting Ur name? More likely helping it. Pussies!

Anonymous said...

Unreal....That's like some tequila company suing a bar that might call itself "Margarita"! WTF!

But seriously, I'd like to commend Pusser's Rum Co. for successfully pulling a "Cheddar Bob" and shooting themselves in the foot.

High volume cocktail bars that offer alternatives to Bacardi, and other well known brands of rum are on the rise....if you wanted to create awareness of your product to the masses...these bars are where you'd like to have product placed. Good luck with that.

As for "irreparable damage"...well, I have two words..."self-inflicted"

Vidiot said...

I wrote this about the Dark 'n' Stormy kerfuffle back in August '09:

I don't know how Pusser's can claim a "Painkiller" as being their trademark, under the "description of the goods" clause applied by USPTO, especially considering that the drink and its name predate Pusser's. They shouldn't have been able to get that trademark in the first place.

Capn Jimbo's Rum Project said...

Charles Tobias website response (in part):

"Under trademark law, if the trademark owner is aware of a third party's infringement and does not move to correct it, the trademark is not sustainable if challenged in court. We could not risk losing this mark because it would've wiped out two good commercial opportunities that we see for our company’s future.

Several years of work would have gone down the drain. For 8 years, we’ve been working on a Painkiller Mix and looking at the chance for a Painkiller RTD (Ready-to-Drink Painkiller in a can). Losing the Painkiller trademarks would take away all chances of success for these products. They would be unprotected in the marketplace.

If they took off, under the name "Painkiller", any giant of a company like a Diageo or a Bacardi or some other could introduce a drink of the same name and we'd be out of the running instantly. We’d be dead.

Thanks to the trademark law, the little guy does have a chance.

So this is what we sought to protect. This is why we waited more than a year for a positive response from PKNY. Finally, the lawyers said if we waited any longer, we would be jeopardizing our trademark position, and really a good part of what we see as the future of our business. It was a hard decision, and I hated to take the step. There was no anger or the “let’s get ‘em” mindset, but neither was there any other choice. We have to protect our intellectual property on which we believe so much of our future depends.

We wish Giuseppe Gonzalez and Richard Boccato great success with their venture, and hopefully in the near future we will be working with them on the common goal of increasing the success of our two businesses."

I have met the family, and I can assure you they have worked very hard to establish their Painkiller. Half - yes half - of their profits to the British Royal Navy Seaman's fund.

I have no respect for those that so righteously flout what's right and legal in our nation of laws. It's legally wrong, and it's morally wrong. Had Tobias and the Goslings not spent a small fortune promoting these fine and unique drinks, no one would be trying to copy or improve them.

To those: why don't you create, name and market your own damn drink, then spend a few million dollars promoting it. But please - don't trademark it - and please allow others to profit on your nickel.

Go ahead.