- Act Now
- Open Internet
- Promoting Creativity
- Open & Accessible Technology
An article in the New York Times caught my eye last week. Apparently, the name “Dark ‘n’ Stormy” to describe a beverage made from rum and ginger beer is a trademark registered with the United States Patent and Trademark Office. Now, the Times article took a rather light-hearted approach to the issue here, likely because the proposition is somewhat laughable, but if you stop to think about it, this is actually a little scary. Just a few weeks ago my roommate offered me a Dark ‘n’ Stormy, and I’m as sure that he failed to use the two ounces of Gosling’s Black Seal rum required for the legal use of the trademarked name as I am that he had no idea the name of the drink he’d just made was trademark-protected in the first place. Granted, this is a different scenario than a bar or restaurant turning a profit by serving the product, but trademarks exist for the benefit of the consumer to identify goods and confidently match them to the quality associated with a given producer. We might say “Kleenex” when we’re talking about tissues, but everyone knows that’s just shorthand – in other words, there’s still some value in allowing Kleenex to protect its trademark because I might actually want specifically Kleenex-brand over some rival (or not). But in this case, the procurer of a specific type of rum has secured the rights to a name that virtually no layman consumer knows is not a generic title! Apparently the drink was invented in Bermuda just after WWI, so there may be some historical tie between the Bermuda based owner of the mark and the drink itself – but that really isn’t so important to me given that the drink name signifies absolutely nothing to potential consumers. Frankly, the whole idea reminds me of a Curb Your Enthusiasm episode involving an argument over the true inventor of the “Cobb salad.” Extend these kinds of trademarks to cover more drinks and dishes and you can pretty quickly end up with an absurd little scenario where you know what you want to order, the server knows how to make it, but it’s verboten to call it by the usual name (or at least advertise it as such on the menu): “Hi, I’d like a cosmopolitan.”
“I’m sorry, we don’t serve those…Smirnoff bought the rights. But may I suggest a one of our famous World-Travelers? It’s basically the same thing.”
What's truly vexing is the thought that this kind of trademark-protection could prevent innovation in “mixology” or a wider range of cuisine. Imagine telling a chef she has to come up with a new name for a dish, because she added her own personal flair to it. The Times article pointed out the possible fix of using an ampersand (&) instead of the registered “n” for the “Dark ‘n’ Stormy.” I guess if that’s okay with you, then you won’t mind ordering that “Cawb salad” you like so much…the one you found that gets the ingredients just right.