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 He notes that it "is of no legal consequence" that Painkillers were originally made without Pusser's rum, but that ignores the larger point: which is that this demonstrates how ridiculous it is that Pusser's claims a trademark on the drink.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.
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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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Maybe they would claim dilution.
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Tomorrow's Headline
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"litigation" even sounds drunk
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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Re: "litigation" even sounds drunk
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ah-ah-ah-ah-ah MORONS ah-ah-ah-ah-ah
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** 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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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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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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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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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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Painkillers
I live in the VI, so I may be biased. ;)
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Re: Painkillers
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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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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Oh that witty Winston
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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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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We Need A Term For This Sort Of Civil Disobedience
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Slick
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Too bad
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Re: Too bad
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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is it just me...
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Pusser's is my favorite..
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Royal Navy Rum issue
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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Pusser's
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Pussers
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Pusser's
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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Re: Pusser's
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.
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