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 He notes that it “is of no legal consequence” that Painkillers were originally made without Pusser’s rum, but that ignores the larger point: which is that this demonstrates how ridiculous it is that Pusser’s claims a trademark on the drink.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.

Filed Under: , ,
Companies: pusser's

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

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

Subscribe: RSS Leave a comment
Anonymous Coward says:

“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.

Beta (profile) says:

"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

Steve says:

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.

Anonymous Coward says:

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

Anonymous Coward says:

Re: 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.

Anonymous Coward says:

Re: 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.

Anonymous Coward says:

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.

matt stine (profile) says:

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!)

Bill Holt (profile) says:

Re: 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.

Bill Holt (profile) says:

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.

dwg says:

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…

Dave (user link) says:

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.

Dan Rowan (user link) says:


“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.

Brad says:


You’re a bunch of thieves profiting off of someone else’s work. You’ve trademarked a cocktail that was created before you were even a brand; it’s not like you came up with it yourselves.

A few buddies and I were talking about companies shooting themselves in the foot by being trigger-happy with their legal departments. You’re my example of that. I really hope that since that lawsuit, you guys have felt it in your numbers. Since this lawsuit, I’ve made about a thousand painkillers, and the closest that Pusser’s has come to it is that I shit all over your brand while mixing the drink with a different rum. You’ll never see one of my dollars, and I’m hoping to hear of your brand failing and going broke before I retire.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...