Painkiller? more like pain in the...

 

I was due to post a blog today about a wonderful brand that is working to support the bar industry by running an exchange programme designed to help bartenders from different countries share ideas and experience other cultures. Unfortunately I woke up and read about a different brand owner who has done the opposite and has actually sued a bar! So my apologies to St Germain, my words about your fantastic exchange programme are going to have to wait a few days while I get this off my chest!

 

The back-story goes something like this… A tiki bar opens in New York and decides to draw inspiration from a classic tiki drink, the ‘Painkiller’ and in fact decides to name itself after this exotic libation. In its first year of doing business, this bar gains a fantastic reputation and business is going well for the team there. Unfortunately though, the Painkiller cocktail is one of the very few that has been trademarked by a brand, in this case Pusser’s rum, and the brand decides to sue the bar claiming irreparable harm to its brand, unfair competition and unfair business practices.

 

The concept of trademarking a cocktail is quite emotive within the drinks industry, and is not something generally embraced by bartenders. It leads to the potential for incidents like this to arise, and it stifles creativity when you are required by law to use a certain product in a particular drink. We all have a favourite rye that we like in our Manhattans, a particular rum for our Daiquiri, or a tequila that we can’t help but reach for when making a Tommy’s. Being free to play with different products in each drink we make is one of the wonders of the cocktail scene, so when that choice is removed it tends to get bartenders riled, and results in the consumers choice being compromised.

 

The outcome of the Pusser’s lawsuit is that the bar ‘formerly known as Painkiller’ will now be known as ‘PKNY’ (although I suspect that every bartender who knows it will still call it Painkiller) and they have had to surrender their domain name, as well as removing any reference to ‘Painkiller’ on their drinks list or marketing material, unless it is in reference to the classic drink and states that it is made using Pusser’s rum (as if that’s likely to happen now).

 

So my point here is this: regardless of the individuals and brands involved, this industry has enough hurdles to tackle, so what’s with the in-fighting? Let’s think ‘bigger picture’ here!

 

Of course when a company takes out a trademark, they have the right to defend it in a court of law, so from that point of view, Pusser’s have just acted within their rights. That being said, I think that a spirit brand suing a cocktail bar is very short-sighted and can only ever lead to a bad feeling in the industry towards the brand. In fact, judging by the reaction within the global bartending community on Twitter and Facebook, as well as in blogs and websites, Pusser’s has done itself more harm than good.

 

What annoys me about this whole situation is that we all work in an industry where both sides, the brands and the bars, need to support each other. Pusser’s have missed this point and thus also missed an opportunity to work with this fabulous bar and to promote the Painkiller™ cocktail, to improve their industry reputation and, ultimately gain positive media attention to their brand. Instead they are being vilified by bartenders around the world and portrayed as ‘big bullies’ picking on a small independent bar owner. Is that really the reputation you want Pusser’s?

 

Now obviously I haven’t been privy to the communication between the owners of the brand and the owners of ‘the bar formerly known as Painkiller’ and there are always two sides to any story, but it seems to me that this was a great chance for a brand and a bar to come together and support each other. Instead bartenders are getting behind the bar owners; Pusser’s have given them the perfect chance to focus their negativity on one product.

 

There will no doubt be plenty more chat over the coming days on this subject so let me leave it with this one simple thought. No matter what happens in the drinks industry, we are fortunate enough to have a global community, but (unfortunately for Pusser’s) one that is quick to close ranks and support each other. I suspect that there are plenty of bartenders, managers and owners who poured away the last of their Pusser’s rum today and won’t be ordering it again anytime soon. It’s a shame when this could most likely have been avoided!

 

So brands, take this as a serious piece of advice: work with bars not against them; support their efforts, and be reasonable when dealing with delicate issues such as this. The consequences of not doing this can be to the detriment of your brand.

 

In the meantime if you happen to be in New York anytime soon, please show your support for ‘the bar formerly known as Painkiller’ it’s a great place owned by good guys, in fact the very type whom should be embraced by the spirits industry! 

Comments

Pussers Rum

To me being ex-RN you mix pussers rum with absolutely nothing…that in itself kills all pain. Such a fuss over a name beggars belief. One simple solution is to ask the customer which rum he would like the cocktail made with.
You can still call it a watered down painkiller albeit Mk1,Mk2 etc:
Just a thought from an old matelot

Rum buggers

Talk about a can of worms. It is possible to tie your brand to a specific cocktail without causing this kind of PR faux pas. Everyone accepts the Myers’s Planter’s Punch or the Gosling’s Dark and Stormy without fuss. The issue here is the big man against the little man. Pusser’s have unneccessarily painted themselves as petty corporate bullies. I have always had a soft spot for Pusser’s since discovering the Pusser’s Bar in Munich, a fantastic little place. I hope they can remove their heads from their proverbials before they cause themselves irreparable damage. In terms of PKNY, they must be loving it. If they were gaining fame before, they will be skirting with legend if this keeps up. Is it any good in there?

next time you're in NY

make sure you check out PKNY next time you’re in NYC mate. I had a great evening in there last December and am looking forward to being back there in October this year. It’s a great place, and as you say this is only raising the profile of an already great bar!

As someone that works for

As someone that works for brand owners and has worked in the Rum category specifically, I would whole-heartedly agree with the sentiment that brand owners should look to work with bars and bartenders. If you take other examples of serves, such as the dark and stormy (which Goslings have done well with) as well as a Mai Tai (which Appleton have advocated), then brands that advocate or suggest their brand rather than dictate tend to gain a) more credibility and b) more longevity because there is a story involved that people can debate upon or at least discuss between the brand and the serve. Sadly, it would appear, the only story being created from this episode is one of negativity which will ultimately be to the detriment of Pusser’s.

Quite a Run

I was at work all day yesterday and missed all the excitement. Dan I couldnt agree with you more. Bars, Suppliers, and makers all rely on each other, and each of us should honor and respect that relationship.

What's Next?

I think the main issue here is the idea that a brand can copyright a drink and actually sue people who dare to use another ingredient. I now work for a great drinks brand company who have some amazing and world famous brands, so i guess i could see it from both sides. However, there’s no way that this can be deemed as acceptable. And as for the Coca Cola example, that’s probably the worst analogy imaginable! This is COMPLETELY different, it’s not like calling a bar The Makers Lounge or Jack Daniel’s Lounge or as our brand friend said earlier Coca Cola Shack without seeking permission from the brand owner. In those examples the bar owner is quite clearly trying to use the hard earned reputation of a brand and their heritage for their own personal gain and i agree that’s not right. But in this case we’re talking about a cocktail!!! Imagine if 4 Roses or Rittenhouse or any other whiskey company wanted to trademark the Manhattan? Looking at the precedent set by this case it would seem that as long as you have permission from the original inventor then you can trademark any drink, for me that just can’t be right. Imagine Dick Bradsell giving Plymouth/Bombay/Tanqueray the permisssion to trademark the Bramble and then PR/BBFB/Diaego running up to Edinburgh and suing Stuart McCluskey unless he agrees to make his Bramble with whatever brand. No thanks.

well said

You’ve got right to the heart of the matter here… Cocktails just shouldn’t be trademarked! It’s not good for the industry at all…

Painkiller license

I called Charles Tobias of Pussers about this a few minutes ago. He said Pussers has been trying to get the bar to make their painkiller cocktails with Pusser’s rum ever since the opened — without success. As a trademark owner, he says he had to either give them a license and work with the bar (his preferred choice) or force them stop selling painkillers without using Pusser’s. Yes, the drink was invented by Daphne at Soggy Dollar using other rums. Yes, Charles has her permission to trademark the drink as long as he always credited Daphne at Soggy Dollar for the original version. It’s an iconic drink and it really hides the liquor well. So, a real flavorful spirit is required to punch through, like Pussers.

Likewise, poor Malcolm Goslings has to defend his copyrighted Dark & Stormy (Goslings and Ginger Beer) all over the world. Anyone can make a drink with the same ingredients of ginger beer and rum, but you can’t call it a Dark & Stormy and you can’t name your bar Dark & Stormy if you use another rum and defy Malcolm Gosling’s legacy.

Pain Killer, or PKNY by any other name is a great bar making great drinks, but they don’t use — apparently they refuse to use, even at great cost and tribulation — the rum that’s used in the trademarked drink known around the world as a painkiler.

There is very little support, if any, among the brotherhood of bartenders in this world for trademarked cocktails. But no one would dare to create their own version of a cola drink and call it a Coke, right? Would you name your bar Coca Cola and serve a similar product to your customers in a glass and call it a coke? No, because they have a reputation for defending their valuable property against imitations.

Rum enthusiasts give Pussers credit for re-creating the original formula for British Naval Rum and making it widely available. The have a right to defend their trademark and, if they did not, anyone could abuse their intellectual property without repercussions. On the other hand, it’s always a shame when people can’t make mutually beneficial arrangements that are fair to each other as nearly as possible.

In the end, the process of a lawsuit itself is so distressing as to require a remedy of it’s own to kill the pain.

Pussers and Painkiller NYC

I couldn’t have said it better. I agree with you and your analogy of Coke and Cola is a clear and concise comparison.

the real issue behind all this

Thanks for your lengthy comments, I appreciate your getting involved in the debate. While I can see both sides of the argument, to me the actual issue isn’t about who’s right and who should have done what. The issue here is that cocktails shouldn’t be trademarked in the first place. The concept of trademarking a drink serves to limit creativity, causes bad feelings and leads to situations like we’ve seen here.

The sad thing is that no one wins when a situation like this comes along. If there was no trademark then bartenders would be free to experiment, and brands would be able to support that creative process. Instead both sides have suffered and we’ve all lost out one way or another.

RE: Painkiller Drinker

Spoken like a true corporate shill, Mr. “Painkiller Drinker”. Funny that you would defend a company who thinks nothing of stealing a bar’s recipe by inserting their brand into the mix and then trademarking it. Leave it to douchebags like that to sue a small business owner who refuses to bow down to what was basically the hijacking of someone else’s hard work by Pusser’s. Congratulations on ostracizing those you rely on to sell your, in my opinion, mediocre product just to protect something you stole in the first place, dumbasses. There are better rums made by companies with more common sense and better ethics.

bourbonated!

we love it when readers of the b&t blog speak from the heart!

I love Painkiller.

If there is anything I know about being a cocktail journalist and that’s how to tell a story. Painkiller NYC is one of my favorite spots anywhere on the island of Manhattan. Here’s why. They are not trendy. They make cocktails according to their historic elements. All the ingredients are top notch.
Pussers is picking a fight with the little guy?

I suppose the next time I’m at Daphne’s on Jost, I’ll call for a Bushwacker instead of my usual Painkiller.

This is such a shame!

This is such a shame! Pusser`s rum tastes bad nowadays, i used to promote it and use it but now i`m switching it for Smith & Cross which makes a better Painkiller.

Who's the bad guy

This article makes some good points, but I think everyone is missing one very important point. When the bar was first approached by the Pusser’s representative they told him to get out. In effect they said “We (now) know it’s your trademark, but we don’t care. What are you going to do about it?” Well, we all know what they did about it.
Why didn’t the bar say, “OK, it’s your trademark and you’re right. How about if we make the Painkiller™ our signature drink and make it only with Pusser’s Rum?” With that thought, how do you think the story would’ve turned out?
PKNY has no right to be upset, and if you think that will stop Pusser’s drinkers around the world from drinking Pusser’s Rum, then you’ve got another think coming.

just trying to be fair

thanks for your comment. I’ve tried to be fair and as I said in the article there are always two sides to every story. This is a story with many layers to it, but the one that stands out most clearly to me is that a company that is supposedly heavily into charitable works, has taken a small independant bar owner to court. Obviously the argument can be viewed from two sides, and the court has made its ruling which I’m sure PKNY will abide by.

I find your comment that ‘if you think that will stop Pusser’s drinkers around the world from drinking Pusser’s Rum, then you’ve got another think coming.’ very sad. I don’t for one second think that every Pusser’s drinker will suddenly stop purchasing this product, however I think it is small minded of any company not to place a value on ALL of their customers, including those who have so vocally shared their thoughts on Facebook and Twitter today.

My article was in no way trying to judge who was right or wrong in this, but actually tried to focus on the effect that taking this sort of action has on the good will or positive perception of a brand.

Sharing is Caring

Why can’t we all just get a long? If people enjoy the brand and the bar we say leave well enough alone!

Cheers,
DIA
@Drinkinamerica
http://bit.ly/DrinkingInAmerica

Is Pusser's going to sue the Soggy Dollar Bar?

After all, they invented the Painkiller!!!

exactly my point

as long as no one sues anyone else, we could all just get along… they didn’t have to be best friends, just accept each other and go about their respective businesses. The moment you take someone to court however that all changes!

Knowing these guys and

Knowing these guys and considering them friends, I know just how far their arms can reach in our community. Tales should be that much more interesting this year to say the least! And in my opinion, I think Smith&Cross makes the most delicious Painkiller I’ve ever had. Try one sometime and in the meantime, drink at PKNY. A lot.

correction

sorry but I can no longer call that set of ingredients a ‘Painkiller’ from now on it will always be a PKNY especially when made with Smith&Cross! you can bet I’ll be at PKNY next time I’m in NYC (october hopefully!)

PKNY

Let me know when you’re in town. I’ll raise a glass at Painkiller or whatever it’s called then. A 1936 Zombie for me please.

Cheers,
wb
Ministry of Rum Judge
Barbados Rum Fest Judge
Tales of the Cocktail journalist/photojournalist
Writer in the Liquor biz.

The Painkiller

Perhaps we can start ordering PKs with other dark rum and leave out the Pussers?

According to Jeff Berry’s “Remixed, A Gallery of Tiki Drinks,” the Painkiller was originally created in 1971 using a mix of Mount Gay and Cruzan dark rums by George and Marie Myrick at the Soggy Dollar Bar, BVI. Berry says dark Jamaican rum works just fine.

never again

Hey Don, I know I’ll never reach for the Pusser’s ever again… there are plenty of rums that work as well if not better in this drink and none of then have sued anyone! From now on I’m calling the cocktail formerly known as the Painkiller, the PKNY!

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