The Era of Copyrighted Cocktails? Not So much.

Intellectual property and mixed drinks: this situation calls for a lawyer.

By Jessica Voelker September 2, 2010

Fair game

This Tuesday, an article appeared on the Atlantic.Com called The Era of Copyrighted Cocktails? Back in July, writer Chantal Martineau attended a seminar about protecting intellectual property at Tales of the Cocktail in New Orleans. The seminar was the intellectual property of Eben Freeman, a NYC barman who used to make drinks at the now-defunct Tailor in Manhattan. Freeman, an undisputed pioneer in the industry, feels that his ideas have been unjustly ganked by his cocktail-making colleagues.

"Someone needs to get sued," Freeman told Martineau, "to set a precedent." That intrigued me, but the article didn’t really investigate how such a lawsuit would work. So I called a lawyer, William Ferron of the Seed intellectual property Law Group in Seattle, and asked him.

“Sue for what?” asked Ferron. “There really isn’t protection for a drink recipe, so I don’t see this type of suit being cost effective or productive.”

No protection at all? Pretty much, said Ferron. You can’t copyright a recipe, so you can’t take away anyone’s right to make the drink that you’ve created, or share the recipe with others online. If you write something about that drink, that you can copyright. So, for example, Eben Freeman famously fat-washed bourbon with bacon at Tailor, and inspired a lot of bartenders to fat-wash as well. Nothing to be done about that; he can’t copyright fat-washing. But he can write an ode to fat-washing, or an existentialist play about fat-washing, or even an essay about how pissed he is that everyone is fat-washing without crediting him. And he can copyright any one of those pieces of writing. But no dice on copyrighting the drink.

But what of patents? “Patents are a possibility,” says Ferron, but there’s really no good news there either. “It’s a lengthy process, you have to prove you’re doing something that’s actually different." Let’s say you developed a new commercial process for prefreezing a cocktail mix that will be sold in grocery stores. You can take that to the patent office. But if you ask them to protect the process by which you made a cocktail in a bar, “realistically, they’re not going to patent the thing” says Ferron.

Okay, how about trademarks? You can trademark a name. But that doesn’t prevent people from making your drink under a different name. Freeman invented a drink at Tailor called the Waylon. To make it, he smoked cola syrup over cherrywood chips and mixed it with whiskey. He could have trademarked the name "Waylon." And he could have used that trademark to stop other bars from calling their drinks "the Waylon." But that wouldn’t stop people from smoking cola syrup over cherrywood chips, mixing it with whiskey, and selling it at a bar.

So yeah, not a lot of good news if you’re a bartender hoping to protect your creations. But look on the bright side, says Ferron. Yes, people steal your ideas and there is nothing you can do about it. But on the other hand you don’t have to worry about getting smacked with a lawsuit every time you put a new drink on the menu or experiment with a technique that inspired you.

And even if you could patent your drinks, he adds, there is the tricky (not to mention pricey) matter of enforcing your patents. "Patent litigation is nicknamed the sport of kings” says Ferron, because it is so expensive and tends to require hours and hours in court to resolve.

And that, when you think about it, doesn’t sound like a very fun sport at all.


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