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Blog Home | September 22, 2014

A Cocktail Trademark

Gosling’s Export is a two century old company from Bermuda. The company’s signature product is a rum called Black Seal.

Gosling’s website, http://www.goslingsrum.com/home.asp, shares a recipe for a drink, invented in Bermuda around WWI, called the “Dark ‘N Stormy.” The “Dark ‘N Stormy” is made by filling a tall glass with ice, adding two ounces of Gosling’s Black Seal, and topping with Gosling’s Stormy Ginger Beer. The drink may be garnished with a wedge of lemon or lime.

On close inspection of the words “Dark ‘N Stormy”, one can see that next to the words “Dark ‘N Stormy” is the symbol for a registered trademark.

The fact that “Dark ‘N Stormy” is a registered trademark was discussed in an article written by Jonathon Miles in the New York Times titled The Right Stuff (by law), http://www.nytimes.com/2009/07/05/fashion/05shaken.html, on July 2, 2009. The article introduces the recipe for a “Dark ‘N Stormy” and claims that, according to two trademark certificates in the USPTO, no rum other then Gosling’s Black Seal can go into a “Dark ‘N Stormy.” The article continues with quotes from the current President of Gosling’s Export, Edmund Malcolm Gosling about vigorously defending the company’s trademark.

Though well written, the article may create some confusion about trademarks.

The USPTO says “[a] trademark includes any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others and to indicate the source of the goods. In short, a trademark is a brand name.” A trademark gives the owner an exclusive right to use their identifying mark. On the other hand, a patent does not cover identifying marks. A patent gives the owner of the patent the right to exclude “others from making, using, or selling the invention in the United States” for a limited period. Examples of inventions that may be granted a patent include processes, methods, and mixtures. An example of a mixture may be a cocktail formula. Therefore, because a trademark protects a brand name and not a mixture, Gosling’s trademark for “Dark ‘N Stormy” cannot be used to keep other rums from being used in a mixed cocktail.

That said, Gosling’s may still want to police their trademark. One reason to police a mark is a risk of the mark becoming a generic mark (also known as the mark becoming genericized). The TMEP states that a generic mark names a product but is incapable of functioning as a trademark. Additionally, a valid trademark can become a generic mark if the public sufficiently misuses the mark. For example, Aspirin was once a trademark but became the generic name for a product. On the other hand, “Xerox” was considered to be a candidate to become a generic name until the Xerox Corp. began spending a great deal of money to prevent misuse of the mark. Thus, if Gosling’s does not vigorously police unauthorized uses of its mark, “Dark ‘N Stormy” may, if it has not already, become a generic mark for any alcoholic beverage containing rum and ginger beer.

Image from: http://www.goslingsrum.com/details.asp?RecipeID=192

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