Signature Cocktails and Trademarking
The great thing about alcohol is that there are countless ways to prepare, mix, and drink it. The possibilities are truly endless for crafting cocktails, with new variations created each day. Yet still, the international Bartenders Association–otherwise known as IBA– only recognizes roughly 80 cocktails. Moreover, even fewer signature cocktails have been trademarked–four to be exact: Dark n’ Stormy, Painkiller, Sazerac–the first American cocktail, and Hand Grenade. That’s right, while there are practically an infinite number of cocktail recipes, there are only 4 that you can legally make one particular way–if you plan to sell them in your bar, that is.
If you’re planning to start or have already begun your alcoholic beverage business, this information might be off-putting, but we are here to inform you of what’s essential–moreover feasible–when trademarking your alcoholic brand, so you can be on your merry way and keep up with cocktail concocting!
Signature Cocktail Trademarks Pose a Challenge
The fact that you can count how many trademarked signature cocktails there are on a single hand demonstrates that trademarking a cocktail name can be highly taxing. What gives? There are plenty of alcoholic beverages to go around, but who claims these cocktails as worthy of being trademarked, and why are there so few trademarked cocktails in general? Additionally, what exactly does it mean to be legally trademarked? Is it the drink, ingredients, or name that’s protected? How can cocktail connoisseurs navigate these tricky legal waters yet still flex their creative muscles to create a beverage with a WOW factor?
Put simply, if you are the lucky few who has registered a trademark for a cocktail name under the trademark category of alcoholic beverages, in addition to “restaurant and bar services,” it prevents anybody else from using it in any USA bar. The objective is that other competing companies cannot benefit or monetize off the cocktail name, therefore protecting your business and your product line from improper use. Dark N’ Stormy, for example, has been a registered trademark in the US since 1991, giving them the authority to police cocktails in bars that sell a Dark N’ Stormy drink or feature it on menus in any other format other than with their specific associated rum. Trademarking a named cocktail offers some control over its use, but cannot necessarily prevent others from creating variations. It would be impossible to police every bar across the United States.
All this to say, the drink’s name is protected under the law when you trademark a cocktail, but only for specific categories, not its ingredients. Trademarking a recipe is actually often easier than trademarking a cocktail name, but we’ll get to that later. Let’s just say, even with a trademark on a cocktail name like Dark N’ Stormy, a bar can mix as many brands of dark rum as they so choose with ginger beer and lime, only breaching a trademark if they boldly choose to still call it a Dark N’ Stormy. This is why we often see spin-offs of popular cocktails referenced on drink menus.
Luckily, most cocktail names can become a hit without being trademarked–using brand ambassadors, persuasive advertising, repetition of published cocktail recipes, and word-of-mouth to establish a solid reputation. Think High Noon or Cutwater–their trademarked brand name builds on the dollars poured into promoting and advertising the drink. These businesses have seen grand success because their mixed cocktails in a can are not only tasty, but have terrific branding.
Let’s dive deeper into Ready-to-Drink cocktails, shall we?
Ready to Drink Cocktails
It should be an indicator by how few cocktails are trademarked that it is a complex and arduous process, but that shouldn’t shy you away from devising up your delicious cocktail concoctions and taking them to market. The fact is, new beverage products flood the shelves of local supermarkets and liquor stores every day. The USDA Economic Research Service estimated that upwards of 4,300 new beverage products–both alcoholic and non-alcoholic–are released every single year. As of 2021, there are over 450 RTD alcoholic drink brands, which should give you confidence that your beverage brand has a shot.
RTD cocktails have found a workaround to trademarking cocktail names or recipes, focusing heavily on branding and product distinctions to claim their name as an accredited cocktail. Though the cocktail recipe and the cocktail name itself can’t be trademarked, the brand name, associated imagery, logo marks, and slogans are protected with trademarks. High Noon, Cutwater, and Buzzballz are some of the top-selling ready-to-drink brands in 2021, and people love the RTD concept because they can take them wherever they go–to the beach, on a hike, to the park.
If you have a cocktail concept you think is worth protecting, you can use the Ready-to-Drink cocktail approach to reach the masses and develop a brand identity. You’ll want to start by trademarking your brand name and distinguishable marks to secure your brand and product line.
Brand Identity is Everything
With so much competition in the boozy beverage game, it is essential to discern yourself with impeccable and recognizable branding, and a mix of ingredients that people will actually want to drink. You’ll want to be the first of your kind, or just a better version of what’s already out there, with better branding, catchy slogans–the whole 9 yards. After Whiteclaw hit the shelves, we saw a great uprising of hard seltzers coming to play around with poker to see which one would be lucky enough to survive and win the jackpot. Many similar tasting drinks, or drinks with nearly the same ingredients, have set themselves apart with a few factors–a different percentage of alcohol content, fewer calories, more flavor, more fluid ounces, more variety, and most importantly–memorable branding.
Another niche example in the RTD cocktail space is Aprés Hour–an espresso martini in a can brand launched in August 2022. Their product is incredibly tasty, creamy, and desirable–made with agave, gluten-free, dairy-free, 10% ABV, in flavors such as salted Caramel, classic espresso martini, and vanilla, all of which contain 40 mg of Colombian caffeine. The owners of Aprés Hour found a way to fill a lucrative void in a thriving industry, effectively cornering the market on espresso martinis. Espresso martinis have been a massive hit in recent years, but espresso tinis in a can? Game changer!
Aprés Hour trademarked under Class 30, which covers coffee and tea, among other things related to food and beverage. Most alcoholic beverage brands who desire to create ready-to-drink products will likely trademark Class 33, which protects the business’s branding that makes and sells alcoholic beverages such as wine, liquor, and various types of mixed drinks. That said, kombucha brands might get away with trademark Class 32, which includes beers, mineral, aerated waters, non-alcoholic beverages, fruit beverages, fruit juices, and syrup in preparation for making beverages.
In certain instances, you can trademark the shape of the container that holds your beverage. Buzzballz trademarked its 3d shape, which is quite literally a truncated spherical ball shape that you shake before opening, creating a fun user experience for consumers. Another example of an alcohol brand that used the shape of its beverage container to distinguish itself from the rest is Clasa Azul reposado. Each bottle that holds their delicious and authentic tequila is hand sculpted and hand painted by native artists–serving as works of art you can keep as a keepsake. Their unstoppable branding reflects their brand values–supporting and representing authentic Mexican culture and tradition. If there is anything we can learn from these brands, it’s that no matter what’s inside, you must make your brand stand out from the rest.
Cocktail Recipes and Patents
Say you have a recipe for a cocktail that is inarguably one-of-a-kind. You can patent a drink recipe so long as it falls under one of the three categories from the USPTO–Design, Plant, or Utility. Securing drink recipes can be tricky, so before filling out an application for a patent, ask yourself if your drink recipe is useful, novel, surprising, and would not immediately click for a mixology expert. If your drink offers a unique and shocking mixture of ingredients, it’s possible to patent your drink recipe. This process is quite long, so you’re better off trademarking your beverage brand name and unique marks instead.
As you can see, creating catchy slogans to go along with your product and trademarking them, so no other brand can claim them is crucial to staying afloat. If you don’t want to go through the hassle of trademarking your secret concoction of delicious ingredients, trademarking your business and soon-to-be iconic brand is a highly valuable asset for your company. Branding alone can make you tons of money, even if your cocktail isn’t that great. Your name positioning in the RTD cocktail market will sit better if you create something unmatched.
If you’re excited about your boozy beverages and ready to secure your brand, please contact our trademarking experts for more information on the next steps.
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