Chantal Martineau, an experienced food-and-drink writer, has a nice look at the topic in The Atlantic. She sets up the debate this way:
“Shortly after the tiki-themed cocktail lounge Painkiller opened its doors on the Lower East Side of Manhattan this May, a man walked into the bar and threatened to issue a cease and desist order. Pusser’s, which distills a Navy-proof rum in the British Virgin Islands, trademarked the recipe for a Painkiller cocktail back in 1989. The man claimed that Painkiller’s owners, Giuseppe Gonzalez and Richard Boccato, had no right to the name of the bar or its namesake cocktail, which they like to make with rums from Martinique and Jamaica. He was promptly sent packing.
“As we’ve learned from the folks at Goslings, who trademarked the recipe for a Dark ‘n’ Stormy in Bermuda in the hopes of enforcing it the world over, it’s impossible to stop people from using a certain recipe once it’s out there. At a certain point, it becomes public property. But when, exactly, does that point occur?”
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