This article has been written by Mohd Aman Khan Afghani pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).
Intellectual Property Rights is a field of Law which is very much in use nowadays and we can hear this term commonly when any dispute arises between Companies and people. Intellectual Property can be said to be the creation of someone’s mind or we can say that it is the creation of someone’s intellect and the person gets protection for his intellectual property and he even gets the rights pertaining to that intellectual property and that is why it is called intellectual property rights of that person. Law provided protection to the person for the creation of his intellect in the form of copyrights protection, trademark, patent, design, geographical indication etc. There are some issues that the bartenders and the industry professionals are required to know with respect to Intellectual Property. In India, there is no specific jurisprudence related to protection of intellectual property being applied in cases of liquor but in other countries bartenders tend to look for a protection mechanism through which they can protect the cocktails and other drinks that they have developed from unauthorized use. Through this article we’ll explore the IPR protection that bartenders can avail of to protect the cocktails and other drinks developed by them.
It can be said that the mechanisms which are there for the protection of Intellectual Property Rights (“IPR”) can be used in the alcoholic drinks so that the bartenders and the creators of unique drinks/cocktails can protect their creations. Some of the terms which are mostly used in the IPR regime are:
- Patents: Patent is something which protects the invention of a person. Regarding cocktails, patents can be granted to a unique tool or instrument which is used for making the cocktail, even the novel or innovative process for making cocktails can also get the Patent protection if it can be proved to be innovative and can qualify the requirements for granting the Patents. It is important to note that once a patent is granted then this protection remains for 20 years with the person to whom this protection is granted.
- Trademarks: trademarks on aluminium cans can be used to protect the Brand, Logo, Word Mark, Slogans, Product names etc. the unique quality of trademark is that it remains valid till the time it is in use. So a cocktail can be given a unique name and can be trademarked after which it will remain associated with its creator.
- Copyright: Copyright is the protection which is granted to literary, dramatic, artistic, musical, and other types of creations like photographs etc. Some think that the recipes of the cocktails can be protected with the help of the copyright but it is not possible as the recipes of the cocktails are considered as facts and the facts can’t be protected. Copyright protection is granted for a fixed term. Copyrights protection can be granted to the photographs of the cocktails, but copyright protection cannot be given to the recipes. An important thing to consider here is that both the Copyright and the trademark vest automatically in favor of the person.
- Trade Secret: Trade Secret can be understood from the term itself, that something which is a secret and used by a person in his trade or business comprises a trade secret. So something which is not known by the general public and which is being used by the person for his business is Trade Secret. Some of the recipes that are used in the bar can be considered to be their Trade Secret. The classic example of this is the formula for preparation of Coca Cola, which is a Trade Secret and the Coca Cola company uses that recipe or formula in their business and no one knows about the unique recipe, in the same way the bars can protect their recipes of cocktails as Trade Secret. In relation to cocktails, when it comes to their recipes which can be considered their Trade Secret, in those recipes the ingredient would not be one which would be important rather the ratio in which those ingredients are to be mixed would also be very important.
Questions related to IPR in the field of cocktails
So after understanding how the IPR pertaining to cocktails can be tackled and which protection can be availed by the bartenders and the bar owners, now some questions to understand the above issue are to be taken into consideration.
- When a bartender makes a particular signature cocktail in a bar and then leaves that bar then can he ask the bar administration to take out his signature cocktail from their menu?
No, it cannot be removed from the menu of that bar until and unless the bartender has executed a specific agreement in that regard. The default position is that if a bartender develops a cocktail while under the employment of a particular bar then that bar will have the ownership right on that cocktail as it was developed under the employment.
- If a bar owner asks any consultant to make a list for the cocktails, then can that bar owner prevent that consultant from selling the listed cocktails to some other people?
No, the bar owner cannot prevent that consultant from selling those cocktails to others. The only option is that the bar owner and the consultant can execute an agreement in that regard, otherwise the consultant is free to use the recipe which he developed in your bar while under your employment in any other place or to any other client.
- Can a bar owner stop another bar owner from making and selling the drink which was developed in his bar?
Yes, if in case the first bar owner who has developed that drink in his bar has acquired the trademark on that drink then he can prevent the other bar owner. If in case the other bar owner is making the same drink with same ingredients but has given it a different name then in that case the former bar owner can protect it if he has got protection from Trade Secret.
The manner in which a trademark on a cocktail can be enforced or implemented is when that trademark is owned by a Brand. Here we can take the case of Bacardi. Bacardi has attained huge success in that. Bacardi made a cocktail and then acquired the trademark and then forced bars to use their name when making and selling the Bacardi cocktail. Another similar case was that of Pusser’s, they own a trademark for a popular tiki drink known as Painkiller. It is said that they have stolen the recipe from a bar on the British Virgin Island. Pussers force every bar which advertisedPainkiller on their menu to prepare the same with Pusser’s and the Pusser’s even sued a bar in New York that was named as Painkiller and this case was finally won by the Pusser’s and that bar in New York was directed to change its name to PKNY. After some time the bar PKNY was closed because it went out of business and other bar also in order to show some solidarity to the PKNY has started dropping the drinks of Pusser’s from their Menu but that has not impacted Pusser’s much.
So above case study is a classic example where a bar has been shut because it has infringed the trademark on a cocktail. But the important issue which has to be considered here is that when the action as above is being taken by a company then it does affect its PR in the market and as a result of that the Business of that company is being hampered and even the revenue of that company is being affected, SO it is not of that much favor to a company which brings suit from infringement against the bar for trademark infringement.
In conclusion, it can be said that preventing someone from making a drink developed by a particular bar and bringing action against violators for the sake of prevention is not much worth it, as that affects the reputation of the bar or the company to which that recipe or trademark of the drink belongs. The most suitable option is having a contract, with the bartender, and with the other bars. In case of a contract with a bartender, it can be written in the contract that whichsoever drink is being developed by him while in employment in the bar, the bar will have ownership of the cocktails recipe, similarly a contract can be entered into by the bar having trademark on the cocktail with other bars in which it can be agreed that the creator of the particular drink has acquired trademark over it and the other bars will use the trademarked cocktail with the name of the bar which developed it. So in the above way the Intellectual property rights over cocktails can be protected. But the first requirement is that the intellectual property rights over cocktails need to be recognized.
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