Dark n’ Stormy

The New York Times reports on Gosling’s registered trademarks for the trendy cocktail drink DARK N’ STORMY, which is two ounces Gosling’s Black Seal rum topped off with some ginger ale.  The article also says that the registration certificates dictate the precise ingredients and amounts. The article raises some interesting issues:

1. According to the registration certificates, Gosling’s has a trademark registration for the mark DARK N’ STORMY for use with Gosling’s Black Seal rum and ginger ale, a pre-mixed alcoholic drink featuring rum and ginger beer, and clothing merchandise.  Gosling does not have the right to prevent a bartender from making a drink featuring rum and ginger ale together, but can assert a right for that drink to not be named a DARK N’ STORMY on the menu without using Gosling’s Black Seal rum. What if a patron asks for a DARK N’ STORMY and is then served with a non-Gosling’s dark rum and ginger ale drink? The safe bet is to respond that the bar doesn’t have Gosling’s and thus can’t serve a DARK N’ STORMY, but can make a dark rum and ginger ale drink.
2. Contrary to what the Times article says, the registration certificates do not mention ingredient amounts, proportions or any requirement that other ingredients must be excluded.  Presumably, Gosling is asserting an implied, non-exclusive license for restaurants and bars using the mark DARK N’ STORMY, and that a condition of the license is that the drink adhere to the proper recipe.
3. A bartender interviewed in the article remarks that she didn’t know about the trademark and proposes as a solution to her using a splash of lime juice (a lime wedge is allowed, but not juice) to print on the menu an ampersand as a replacement for the “n’”. That’s not going to work. It won’t pass the sight, sound and meaning analysis used to determine the similarity of a mark as part of a likelihood of confusion test.
4. Gosling does not have the right to stop the Bulwer-Lytton Dark and Stormy Night fiction contest. And speaking of the Bulwar-Lytton contest, I like this Runner-Up entry in the Fantasy Fiction category by Andrew Manoske of Foster City, California: “Towards the dragon’s lair the fellowship marched — a noble human prince, a fair elf, a surly dwarf, and a disheveled copyright attorney who was frantically trying to find a way to differentiate this story from ‘Lord of the Rings.’”

(Dark n’ Stormy image by star5112 used under a Creative Commons license.)