Pusser's Rum Wins Ridiculous Trademark Battle, But Loses The War As Bartenders Protest And Boycott

from the think-of-the-bigger-picture dept

Last year, we wrote about the absolutely ridiculous claim by a rum distillery in the British Virgin Islands, named Pusser's, that a bar in New York City, named Painkiller, cease using the name and cease serving a drink by that name. At issue? Pusser's apparently has the US trademark on "Painkiller," as a rum drink that's made with Pusser's Rum. That the drink itself was apparently created ten years before it included Pusser's rum is apparently unimportant. Either way, the legal fight was apparently too much, and Painkiller the bar has agreed to drop the name, and rebrand as PKNY. But here's where things got interesting. While the company may have won that battle, it may be losing the larger war, as tons of bartenders are pissed off about the whole fight, and are unlikely to use Pusser's rum for anything:
What followed could only be considered a very bad week for Pusser's. While the lawsuit was settled in their favor, this small brand found itself a pariah among many bartenders and fans of PKNY. Within hours of the news, several Facebook groups were launched, calling for boycotts of Pusser's rum and an end to trademarked cocktail recipes (these pages had hundreds of supporters within a few days); and bartenders around the country began conducting their own forms of civil disobedience, serving and in some cases advertising Painkillers that are notably not made with Pussers, and posting photos of the menus online as a challenge to Pusser's to sue every bar that ignored the trademarked recipe.
Not only that, but some of those protesting noticed that Pusser's itself had urged people to replace a different rum in a different trademarked drink with its own rum -- something that Pusser's now claims is trademark infringement. That plea had come in a tweet which has since disappeared (covering their tracks, huh?). As things keep getting worse and worse, Pusser's boss decided to put up a blog post responding to the controversy, in which he plays the "we're a small business!" card, but fails to respond to the key points of criticism. He notes that it "is of no legal consequence" that Painkillers were originally made without Pusser's rum, but that ignores the larger point: which is that this demonstrates how ridiculous it is that Pusser's claims a trademark on the drink.

And, of course, he goes on to play the "but we have to defend our trademark, or what chance do we have" card, which is completely bogus:
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.
As far as I can tell, this is basically Pusser's admitting that its rum simply isn't very good. After all, if "Bacardi or some other could introduce a drink of the same name" and Pusser's would be "out of the running instantly," that suggests that he knows Pusser's rum just doesn't have anything going for it, other than a trademark. After all, if the rum really is distinct and what people want, then wouldn't it be able to compete on taste and reputation? Kind of surprising that the company's own boss would admit that it can't.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Jun 22nd, 2011 @ 1:58pm

    "Painkiller the bar has agreed to drop the name, and rebrand as PKNY"

    Yikes. Either they didn't learn their lesson (choosing a name without a trademark search can result in huge hassles) or they did (getting into a trademark dispute can be great publicity).

    I wonder if anyone has told the DKNY people.

     

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    Doctor What, Jun 22nd, 2011 @ 2:41pm

    Tomorrow's Headline

    "Donna Karan Files Copyright Infringement Lawsuit against New York Bar"

     

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    Anonymous Coward, Jun 22nd, 2011 @ 2:45pm

    News flash: financial muscle and marketing > quality of the product.

     

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    Beta (profile), Jun 22nd, 2011 @ 3:00pm

    "litigation" even sounds drunk

    "If [this drink] 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."

    As far as I can tell, this is basically Pusser's admitting that its rum simply isn't very good.


    Well, to be completely fair, maybe Pusser is admitting that the cocktail recipe isn't very good: if Bacardi fielded a better "Painkiller" recipe -- trademarked and specifying Bacardi rum -- then Pusser's rum would lose a lot of market share... in all the bars in lawyerworld... where they probably don't dare serve rum anyway

     

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      Steve, Sep 29th, 2012 @ 1:22pm

      Re: "litigation" even sounds drunk

      The Pusser's Painkiller recipe is pretty darn good - have had quite a few in my day. Their concern is not whether someone like Bacardi would make and market a better recipe (possible but not probable) it would be if it was good enough. Bacardi's marketing reach and financial influence is probably at least 1000's of times larger that Pusser's is (they truly are a little guy). As Anonymous Cowards comment above.

       

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    crade (profile), Jun 22nd, 2011 @ 3:11pm

    Well, if you "have to" defend your trademark then I guess you "have to" attack your customers, make them hate you and lose a lot of business. Guess they had no choice.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 3:30pm

    You can trademark the name of a recipe?

     

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    Anonymous Coward, Jun 22nd, 2011 @ 3:38pm

    Rum stands on its quality and taste. Annoy people of selling your stuff and they will not stock it, not like there are only a few rums for sale. Bacardi sucks, try Kracken rum which is much better.

    ** Special note this message was in no way endorced by the producers of bacardi or Kracken rum** please don't sue me ;D

     

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      Anonymous Coward, Jun 22nd, 2011 @ 3:45pm

      Re:

      "Rum stands on its quality and taste. Annoy people of selling your stuff and they will not stock it"

      Those two statements seem contradictory, or at least potentially contradictory. The second makes it seems like quality and taste won't be enough to save you if you have bad marketing or market perception.

       

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        Anonymous Coward, Jun 22nd, 2011 @ 4:13pm

        Re: Re:

        Nothing will save you if you have bad marketing or market reception. Other than undoing whatever got you said reception.

         

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    Anonymous Coward, Jun 22nd, 2011 @ 3:48pm

    Not contradictory, cumulative.

    The rum itself stands or falls on quality and taste.
    Assuming it gets to the target market at all
    And if you piss off your gatekeepers it won't.

    So that's two strikes, lessee if they get a third.

     

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      Anonymous Coward, Jun 22nd, 2011 @ 4:12pm

      Re:

      Except that Bacardi seems to do pretty well, despite its supposed low quality/taste.

      I'd say alcohol is one of those areas where marketing plays a disproportionate role in the success of the product.

       

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        Anonymous Coward, May 9th, 2012 @ 10:00pm

        Re: Re:

        The same can be said for most of what drives popular culture. Take the aforementioned DKNY, or almost any recognized clothing brand as a prime example: there is often very little discernible difference in quality between designer and 'lesser' brands. Much of what people pay ridiculously inflated prices for is often made in the same off-shore sweatshops as are no-name products. People are vain and brand recognition quite often outweighs common sense.

        Back to booze. As a related example, Budweiser is a lackluster beer and Bud Light is toilet swill, but Anheuser-Busch is the preeminent brewer in terms of global sales. There is simply no accounting for taste. We employ terms like 'common' and 'the masses' partly for that reason.

         

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      Anonymous Coward, Jun 23rd, 2011 @ 8:05am

      Re:

      Pusser's will have to change the name to Lesser's..

       

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        Anonymous Coward, Jun 23rd, 2011 @ 8:09am

        Re: Re:

        Also to note though, sales through this contriversy may spark a slight upswing through curiosity even from non rum drinkers.

         

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    Fsmith, Jun 22nd, 2011 @ 3:53pm

    Painkillers

    Are disgusting anyway- seriously. The amount of coco Lopez in these things could give you a heartattack. The flavor doesn't justify the calories. Bleck bleck bleck.

    I live in the VI, so I may be biased. ;)

     

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      Anonymous Coward, May 9th, 2012 @ 11:00pm

      Re: Painkillers

      I rather smartly quit drinking almost three years ago, but Pusser's was a favorite of mine and, in my opinion, Painkillers are a fantastic drink.

      I agree that Coco Lopez can be a bit sickening, and the ingredient list on most supermarket-shelved cream of coconut would not win favor with any good physician.

      I experimented with alternative ingredients and proportions. My painkillers were always made with Pusser's and were heavily dosed with it. Drink recipes -- even exalted 'trademarked' ones -- vary from one cock-of-the-walk bartender and trendy nightspot to another, so on that matter alone this entire issue is a rather moot point. The one thing I'd moderate is the amount of ground nutmeg used as a garnish for authentic Pusser's Painkillers.

      Great rum, great drink, but taste is subjective. One thing which is certain is that Pusser's has branded themselves as Pussies for pushing this matter. Perhaps, as someone noted earlier, their premise was 'any publicity is good publicity'.

      Most people don't even know about Pusser's. If they do and they prefer the brand they will likely make a specific request for a Pusser's Painkiller when at a bar. This isn't a matter of branding or trademark infringement, but one of exposure.

      A simple request to the owners of the Painkiller bar to feature their rum in their signature cocktail may have ingratiated Pusser's to them. That would seem preferable to the alienation which the admittedly small distiller invited upon itself.

      My gripe with Pusser's was that they advertised ornate ceramic hip flasks and flagons for sale but they never produced them. I asked repeatedly and the owner of the liquor store which I frequented stopped inquiring about a flask on my behalf after more than a year of postponements.

      It would appear that the fine folks at Pusser's should examine their marketing strategies and management practices if they wish to enjoy a sustained market presence, however large it may be.

       

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    matt stine (profile), Jun 22nd, 2011 @ 5:07pm

    What's interesting to me is that Pusser's actually produces a VERY good rum. I've had it many many times and it costs A LOT more than a bottle of Bacardi. It is basically like the "single malt" of rum and it actually has a fantastic story behind it too. It was the rum of the British Navy and it's a recipe that has been around forever.

    So Mike, you're even more right then maybe you know. Instead of worrying about silly cocktail names and pouring cash and resources into ridiculous lawsuits, they should be focusing their efforts on promoting what actually makes their brand distinct and valuable. If they were selling really cheap and crappy rum that would be one thing, but knowing how good this product actually is, it's even worse to see them resort to silly trademark disputes in an effort to protect their brand.

    (And no, I swear I have absolutely no connection to Pusser's Rum other than I really do love it...It's one of my favorites!)

     

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      Beta (profile), Jun 23rd, 2011 @ 5:29am

      Oh that witty Winston

      "[Pussar's] was the rum of the British Navy..."

      That's very interesting, but not exactly praise for the rum itself, I mean not when the alternatives at sea were the lash and that other thing.

       

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      Bill Holt (profile), May 9th, 2012 @ 11:48pm

      Re:

      I added my thoughts in response to the comment prior to yours -- just before reading yours, Matt. I wholeheartedly agree with your statements.

      Pusser's is one of the most lauded rums in the world, for reasons which you clearly understand and appreciate. The smell of a freshly uncorked new bottle is a wonderful experience all its own. Pot stills make the difference, as Pusser's insists.

      I paid between $25 and $27 per bottle when I was buying Pusser's a couple of years back. It is worth the money, should anyone here who's unfamiliar with Pusser's feel inclined to try it after reading this story and the attendant comments.

       

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    Nicedoggy, Jun 22nd, 2011 @ 5:10pm

    I can't remember the last time I had a drink, but in my next heart attack I will try that NY painkiller thing to see if it works.

     

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    Lawrence D'Oliveiro, Jun 22nd, 2011 @ 6:59pm

    We Need A Term For This Sort Of Civil Disobedience

    As a totally biased Kiwi, let me suggest “doing a Harrodsville”. :)

     

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    Anonymous Coward, Jun 23rd, 2011 @ 7:13am

    Slick

    They aren't stupid. If they get sued over the PKNY name it will only bring more attention to them and their story.

     

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    JustMe (profile), Jun 23rd, 2011 @ 7:41am

    Too bad

    Had I read Matt Stine's micro review of Pusser's outside of this article I might have sampled some this coming (U.S.) holiday weekend. However, after reading about their lawsuit over a drink recipe THEY DIDN'T EVEN INVENT I'll never support this company.

     

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      Bill Holt (profile), May 10th, 2012 @ 12:22am

      Re: Too bad

      We need to bear in mind that this was not the most authoritative, professionally researched and written piece. It isn't amateurish, but "That the drink itself was apparently created ten years before it included Pusser's rum is apparently unimportant." is a claim which, given the gravity of the matter, calls for some substantiation, not mere hearsay mention.

      While I cannot provide the factual information which I criticize the author of this article for failing to offer, I believe that the Painkiller was invented at the Soggy Dollar Bar on Jost Van Dyke Island, British Virgin Islands. Lore has it that it was there in 1975 that The Painkiller was 'perfected' with the use of Pusser's Rum as its principal ingredient.

      The argument might be one of semantics, debating the value of the difference between 'invented' and 'perfected'. Was the recognized Painkiller anything of merit prior to the introduction of Pusser's, or did the superior quality of Pusser's elevate the drink to prominence? Either way, if this legal pissing match was just an expensive marketing ploy, Pusser's has some confidence and bravado.

       

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    dwg, Jun 23rd, 2011 @ 9:58am

    is it just me...

    ...or is the name "Pusser's" kind of gross, too? and can't the trademark be invalidated as purely descriptive? you can't trademark aspirin "painkiller" because that's what it does--why should you be able to mark an alcoholic drink with that name, when that's a function of alcohol, too? i had a friend get a proposed mark of "inversion layer" dinged for wine, because the inversion layer has something to do with the wine-making (actually wine-grape-growing) process, so...

     

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    Eric, Jun 23rd, 2011 @ 11:43am

    Pusser's is my favorite..

    On a side note, Pusser's Rum is incredibly yummy. I lived in the USVI's for a bit and that is where I first got to try it. It's one of the only Rum's I'll drink straight. I'm very sad now that they would sue over this, but I'll still drink it if I can find it.

     

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    Anonymous Coward, Jun 23rd, 2011 @ 10:42pm

    Cruzan Blackstrap is a better navy rum anyway.

     

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      Bill Holt (profile), May 10th, 2012 @ 12:50am

      Re:

      I was wearing a Cruzan shirt two days ago. I've had Cruzan, but not the Blackstrap variety, and it was quite good. I wanted to try the Single Barrel.

       

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    Anonymous Coward, Jun 26th, 2011 @ 11:08am

    Get your facts straight, they never told them to stop making the drink, only to make it with their rum or call it something else.

     

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    Dave, Dec 14th, 2012 @ 9:34am

    Royal Navy Rum issue

    I served in the Royal Navy, and used to be issued with a Gill of Rum every dinner time, this was called Up Spirits and all over the age of 20 years old was entitled to what was known as a tot, this consisted of 1 part Royal Naval issue rum and 2 parts water, the rum on its own was thick in its natural state, and Petty Officer and Cheif Petty Officers were issued this neat (not watered.)

    The term 'Pusser' in my time in the Navy (8 years) refered to anything the navy issued to you or as part of your kit.

    (ie) Pusser Dirk (Knife) Pusser's Boots, Pusser's Medal means a gravy stain on your clothes, as thats the only medal you'll get in the navy, they are so hard to come by.

    I have drank, the commercial PUSSER's rum and is not anywhere as good as naval issue rum, but not a bad tasting rum,I have not tasted a rum anywhere as good as naval issue rum, or any near it, however I have not tried all rums, but will try Blackstrap if I can find it.

     

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    Jon, Aug 17th, 2013 @ 5:25pm

    Pusser's

    Your article is a farce. Pusser's is a wonderful rum. The fact that they are trying to exercise their legal status and your complete lack of support for their rights shows you are a tool.

     

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    Rene, Sep 3rd, 2013 @ 6:46pm

    Pussers

    Just use DON Q dark rum on the pain killer. Don Q has won more awards that that pussers rum.

     

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    Dan Rowan, Apr 2nd, 2014 @ 4:27pm

    Pusser's

    "We’ve been made out to be the bad guys, a giant bully towering over the little guys at PKNY. Nothing could be further from the truth. We ship about 30,000 cases annually. By comparison, sales of Bacardi and Captain Morgan in the U.S. are 9,400,000 and 6,200,000 respectively. So what we really are, with our 30,000 cases, is a little guy whose annual sales dollar volume is lower than thousands of well run bars in United States where many of you work. Think of us as a medium volume bar – and then you’ll have our size in perspective. We are not a giant, nor anything like it! The perception of the size of Pusser's Rum is way beyond reality. Nor are we the bad people that we’re being made out to be.

    The fact is that we are a very small company trying desperately to protect our intellectual property on which we believe a chunk of our future depends. The trademarks that we own were acquired fair and square. There was no skulduggery or stealing from anyone - and to state otherwise is untrue. If some of you believe that trademarking a drink is wrong, then why not work on getting the law changed? And what about Coca Cola that's had thousands of lawsuits over the past several years for trademark infringement? Is it wrong for Pusser’s or any trademark owner to defend the unauthorized use of its intellectual property? We don’t think so."

    *Charles Tobias on Pusser's website - wholeheartedly agree.

     

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