Post #600942 by Limbo Lizard on Thu, Aug 4, 2011 1:44 PM

Been watching this thread, and percolating my thoughts for a while.
Oh, boy! First, let me strap on my helmet and Kevlar vest, then here goes...

First off, regarding the 'David vs. Goliath' characterization, I think some may be overestimating the "overwhelming resources" of Pusser's to litigate. Pusser's is not Bacardi. Or even Cruzan. Hell, within the industry, it's practically a micro-distiller!

Anyway, my first reaction to this imbroglio, was, Why didn't they simply trademark "Pusser's Painkiller"? Then I did a little research, and in fact, they did, initially. But then they abandoned that, and trademarked plain old "Painkiller". After giving it some thought, I fully agree with that move.

Imagine if their trademark was for "Pusser's Painkiller", with plain "Painkiller" still out there for anyone to use. They invest lots of money promoting and popularizing the "Pusser's Painkiller", both as a mix-to-order cocktail and a ready-to-drink (RTD) product, with the goal of eventually recovering all that money, and more (you know, 'profit'). But IF they succeeded, who realistically thinks this newly popular drink would be commonly called the "Pusser's Painkiller"? No, it would be simply known as the "Painkiller'. So, after Pusser's invests lots of money, promoting this drink and bringing it into customer's consciousness, and creating a market for it, Bacardi (for instance) could jump in with the RTD "Bacardi Select Painkiller", or whatever. They'd piggyback Pusser's investment in creating the market, then crush Pusser's with their superior distribution and resources. Pusser's would never make back what they put into it. So, the trademark had to be for just "Painkiller", to keep from having their investment hijacked.

Now, I know most of us (myself included) feel contempt for RTD cocktails. Fine, we don't buy them. But I won't fault any distiller for pursuing that growing market. And if you're going to pour your own, or investor's, money into a new RTD product line, you'd better protect the name of that product. I'm sure the whole deal with the bar was at the advice of their attorneys, with the goal of preserving their trademark, and the value of their investment. I haven't heard PKNY's account - I wish we could. But I just doubt that Pusser's was gratuitously 'bullying' them. Pusser's did not make money from protecting their trademark - their attorney's did. It cost Pusser's - money, and a little negative PR - but they clearly judged it necessary, in order to protect what they'd already invested in the 'Painkiller' venture.

Look, I don't think Pusser's would care if 'Joe's Neighborhood Bar' offered a drink named "Painkiller", made with Myers's (or Jack Daniels, even). I don't think Pusser's would worry about a bar named "The Painkiller Lounge" in West Podunk, Wyoming, Pop. 10,000. Neither would have much impact, in a case arguing that Pusser's had substantially failed to defend their trademark. But, c'mon - a bar in Manhattan? Named "Painkiller"? That serves a namesake rum drink NOT made with Pusser's Rum? And that could be arguably considered "nationally known"? Tobias may have preferred not to get into a dispute with a popular drinking establishment, but he was truly "between a rock and a hard place". Say Pusser's let it slide. Then Bacardi hijacks their product with "Bacardi Painkiller - ask your bartender, or buy it in a can". Pusser's sues them. Bacardi - who can really afford to litigate - responds, 'But there's a nationally known bar, actually named "Painkiller", which features a drink by that name. And Pusser's tolerated this highly prominent use of "Painkiller" as the name of a club, named after their featured drink, which was NOT made with Pusser's rum. So we - or anyone else - should also be allowed to market a "Painkiller", made with our own formula and rum.' Bacardi would have a good case, don't you think?

As far as the rum, itself, I really like Pusser's, but I don't drink much of it. It's pricey, and so I eschew drinking it, so I'll "have it on hand" in my bar. If it was $6 or $7 less, I'd probably buy a case a year, instead of a bottle every few years. So, while I won't be boycotting, they'd never notice, if I did.

[ Edited by: Limbo Lizard 2011-08-04 13:53 ]