Intellectual Drink Property

Sue the Bartender

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As the high-end cocktail craze continues to gain momentum and bartenders become possessive about their creations, could we soon see copyright-protected cocktails? In August on the Atlantic website, food writer Chantal Martineau described a lecture given at the annual Tales of the Cocktail convention in New Orleans in which intellectual property experts discussed the possibility of copyrighting drinks.

Eben Freeman, the innovative bartender who says he invented "fatwashing," the process that brought drinkers the likes of bacon-flavored bourbon, complained that he's not getting proper credit for his creations. "Someone needs to get sued," he told Martineau.

Under current law, published recipes can be copyrighted, but drinks and foods themselves cannot. In other words, you can sue someone if he republishes your cookbook without permission, but not if he uses it to prepare a dish. Restaurants and food manufacturers closely guard secret ingredients and recipes, and employees can be sued for violating nondisclosure agreements, but there's no remedy for McDonald's if Burger King manages to decode its special sauce.

Nonetheless, creativity and innovation flourish in both the food industry and the cocktail scene. There may be a lesson there for other areas of intellectual property law. 

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  1. The recipe can be copyrighted in terms of any literary expression it contains. To the extent it just has info that can only reasonably be expressed a few simple ways, there’s no protection for it.

    You could get a utility patent on a food if it’s novel by the standard an examiner would use, and would stand up to the extent it really was unobvious to someone skilled in the art. But really, practically all uses of food are too obvious to pass this novelty test.

    You could get a design patent for a particular pretty and distinctive arrangement of food on the plate, I think. You could design a fancy glass to put the drink in and get a design patent on that.

    You could easily get a trademark on a new name for a drink, but then you’ve got to show you’re taking appropriate steps to protect it. If you imply that other people may make one and call it that without your say-so, or that you’ll give permission without some way of monitoring the authenticity of their product, you’ve lost it right there.

    Your best shot at protecting the drink is by making its recipe secret. Like Coke or Ky. chicken.

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