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Thursday, September 9, 2010

Should Bartenders Trademark Their Drinks? Josh Harris Weighs In

Posted By on Thu, Sep 9, 2010 at 2:13 PM

Josh Harris of the Bon Vivants, right. (To the left is partner Scott Baird.) - LIZA GERSHMAN
  • Liza Gershman
  • Josh Harris of the Bon Vivants, right. (To the left is partner Scott Baird.)
Thanks to an article by Chantal Martineau that appeared in the Atlantic Food Channel last week, one of the discussions engaging the bar industry has filtered out to the public. At this year's Tales of the Cocktail conference, Martineau attended a panel at which Eben Freeman, an influential New York bartender, appeared with a Trademark Office rep and a lawyer. The panel spoke about the issue of copyrighting or trademarking a bartender's drinks so he or she could receive fair compensation for a drink once other bartenders copied it.

The author's flawed understanding of intellectual property law was quickly dissected, but the questions she raised remained. Basically, there's no way to copyright a list of ingredients and their proportions, but you could try trademarking a drink name or patenting a process such as Freeman's "fat-washing" technique of creating bacon bourbon. [At least, after reading the blog responses, that's my understanding of IP basics ― feel free to refine in the comments.]

The fact that this discussion has been raised reflects a huge shift in

the way we order cocktails. Most of us grew up picking a few favorite

standard cocktails and then evaluating bartenders based on their skill

in executing those drinks. More and more people, however, go to cocktail

bars specifically for the bartenders' own drinks. Much like chefs have,

bartenders are receiving more national recognition, and brand-sponsored

cocktail competitions drawing recipes from around the country have

exploded in popularity. You can see how a bartender would want to

protect what he or she has created.

As for San Francisco, this city is so cocktail crazy that restaurants

are keeping consultants like Josh Harris and Scott Baird, aka the Bon

Vivants, busy developing drinks and training staff. A few days ago I talked to Harris

about whether he's all for copyrighting/trademarking/patenting his


Harris: The issue is tricky. From my perspective, this is not the bar hobby, it's the bar business. When I have a family and children, I would love to support them doing this for a living. Is copyrighting cocktails and suing people the way to do that? I don't think so.

If I invented the gimlet, and someone else created a cocktail with gin, lime, and ginger syrup and called it a "ginger gimlet," well, that's where it gets a little gray. How do you enforce that? Unless a cocktail was followed to the letter of the law, with the same name and the same spirits, seems like it would be difficult. And if someone across the country puts my drink on a menu and credits me, should I receive 10 percent of the sales? That sounds ridiculous.

SFoodie: Initially I agreed with you. But then I started thinking about recipes in the food world. there's was a big brouhaha in 2008 about Cooks Illustrated trying to protect its recipes, even from modification. My thought was that, even if you copy a recipe, there's so much about the execution that changes the way the dish will taste ― the quality of the ingredients, the heat you keep your oven at, your skill with the tools. In drink recipes, you're calling for standard liquors combined in specific proportions.

There is a lot of variation, actually. For example, Scott [Baird] and I use only organic evaporated cane sugar in our simple syrup and make it with a two-to-one ratio. The biggest change we'll see is bartenders who make simple syrup with white sugar at a one-to-one ratio. It produces a significant difference in texture, mouthfeel, and the balance of sugar and acidity.

In addition, we may call for such-and-such a bourbon. But you could make the same drink and change the bourbon ― you're paid by a certain liquor company to use its brand, for example, or you just prefer another bourbon and you think my cocktail would be better with it.

When you design a cocktail, is it your client's or yours?

The cocktails are theirs but also ours. [Laughs.] For example, we don't put anything in our contracts about [intellectual property]. At the same time, if we wrote a cocktail for a menu, we wouldn't put it on another menu or on our own menus. For one-night events, we have taken a cocktail that was on a restaurant client's previous menu, but only after it has been off the menu for several seasons. But upon completion of a consulting contract, some restaurants have asked, "Do we have to change the menu?" and I tell them "No! We created those for you. And now it's time for you to pay us." [Laughs.]

At the same time, when you create a good cocktail, do you want to try to push it into legendary status? I did a cocktail for Yamazaki that won a competition. We put it on the bar at Romolo, and when we won the Chronicle bar stars, we submitted that cocktail. Cocktails like Jon Santer's Revolver has moved into that realm. If can get that, it doesn't necessarily bring more money to you in the form of checks, but it builds your brand. In a roundabout way, that's helping your business grow.

One thing in San Francisco that has set itself apart from other cities is the collegiality. For example, we were trying out cocktails at 15 Romolo for an event and a buddy came in. We were so excited that he walked into the door just as we were tasting recipes, so we started bouncing ideas off him. In other cities, all those cocktails would have disappeared off the bar the moment he walked in, and he'd have gotten a "Hey, can I get you a beer?" 

Have you ever walked into a bar and seen your cocktail on the menu?

I have. But I knew beforehand I'd see it. A brand I was working for had landed a big corporate account, so one of my cocktails went out to a bunch of bars. I was younger at the time, and it was a thrill. I was in L.A. and I took a photo of it. At the same time, the cocktail I had originally designed and the one they had executed were different drinks.

Follow us on Twitter: @sfoodie. Follow me at @JonKauffman.

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Jonathan Kauffman


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