How intellectual property has been used to protect and preserve culture
The fact that a people’s culture is peculiar to them and gives them an identity, and the fact that intellectual property protects the creators of innovative creations, leads one to believe that intellectual property can, and should, be used to protect and preserve culture.
On April 12, 2011 Pusser’s Rum filed a lawsuit in U.S. District court against the owners of a tiki bar called Painkiller, which is on the Lower East Side of New York, alleging that their use of the name Painkiller in their bar and some of the cocktails they sold was causing irreparable harm to its brand, Pusser’s Painkiller® (Bolt 2011). Pusser’s won the case because they owned the Painkiller trademark in the United States, and the tiki bar had violated their intellectual property rights.
The Painkiller is part of Virgin Islands history, and arguable part of Virgin Islands culture. The name originates from a cocktail invented in 1971 by the then owners of the Soggy Dollar bar on Jost Van Dyke, George and Mari Myrick (Bolt 2011). Charles Tobias came along in the 1980s and was a regular at the bar and loved the Painkiller, but the new owner, Daphne Henderson, refused to give him the formula. Through perseverance he came up with his own formula, which he thought was better, and challenged Daphne to a taste test, which he won (Pusser’s West Indies n.d.).
Charles then sought, and got, permission from Daphne to trademark the Painkiller name in the United States and around the world, now Pusser’s Painkiller® because he made it with Pusser’s Rum. Though you can still buy the Painkiller in the Soggy Dollar bar in Jost Van Dyke, Pusser’s owns the Pusser’s Painkiller® trademark.
Dark ‘n Stormy®
On 27th February, 2012, Gosling’s Rum website, in a press release, declared that Gosling’s Dark ‘n Stormy® cocktail will be available in 8.4oz cans (Goslings Rum 2012):
"The national drink of Bermuda is arriving on American shores ready to drink, in a stylish new 8.4 oz./250 ml can. A deliciously refreshing blend of Gosling’s Black Seal Rum and Gosling’s Stormy Ginger Beer, this is the authentic Dark ‘n Stormy cocktail created to be enjoyed directly out of the can."
In some quarters, the Dark ‘n Stormy cocktail is considered the national drink of Bermuda. In fact, before the 8.4oz canned version was released, the company claimed it was released to the ‘most demanding Dark ‘n Stormy connoisseurs in the world – Bermudians’, and won their approval. However, the Dark ‘n Stormy trademark is owned by the Gosling’s. In fact, they own two trademarks for the cocktail, which specify that the main ingredient of the cocktail must be their Black Seal Rum (Miles 2009).
Gosling’s Rum has a history that goes back to 1806 when James Gosling opened their first shop in Bermuda. In 1860 they distilled the first distinctive Bermuda black rum, which would later be called Black Seal Rum. Today, Black Seal Rum is a part of Bermudian culture and heritage, and is an essential ingredient in the trademarked Dark ‘n Stormy® cocktail, among other local dishes and cocktails (Goslings Rum n.d.).
Trademarks and culture
Marks and symbols form an integral part of any culture, and anthropologists have found that though different cultures may use the same or similar marks or symbols, the interpretation of such marks across cultures can be vastly different. Trademarks help to ensure that a mark or symbol is not misused, misrepresented, or misinterpreted, and that the meaning associated with the mark or symbol, cultural or otherwise, is the same regardless of where the mark or symbol is used.
The Paris Convention for the Protection of Industrial property of 1883 and the Madrid Agreement Concerning the International Registration of Marks of 1891 are the two earliest agreements that catered to using a mark or symbol to represent a product and confirm its source. What this did was remove the disparate cultural interpretations of similar marks and created one interpretation of a mark, which was based on the source of the mark, the source culture of the mark, or however the person registering the mark intended for it to be interpreted. It also prevented others from copying the mark and using it to misrepresent the source and quality of goods or services bearing that mark.
The Painkiller and Dark ‘n Stormy cocktails are considered national cultural icons of their respective territories by their respective peoples, the Virgin Islanders and Bermudians. By having these names trademarked it ensures that the meanings, connotations, and interpretations associated with these cocktails are the same regardless of where they are used – cocktails made with the same specific ingredients mixed in the same specific way. In essence, it preserves that aspect of Virgin Islands and Bermudian culture by preventing anyone from making similar cocktails and calling them by these names unless they have specific ingredients mixed in a specific way.
The trademarks for the Painkiller and Dark ‘n Stormy cocktails are not collectively owned by the people of these territories, but by residents of these territories, Mr. Tobias and the Gosling’s respectively. Therefore, legally there is nothing to stop the owners from taking their names with them if they decide to leave these territories, though it would be morally questionable if they did so. Further, legally there is nothing to stop them from modifying the mark and makeup of the cocktails if they choose to do so, because they own the trademarks. This raises a very important question, should an individual or company own the trademark of a cultural icon of a people? Or should the people own the trademark of their cultural icon?
With current international laws and treaties, an individual or company can own the trademark of a cultural icon of a people and use it whenever, wherever, and however he, she, or they see fit. Nevertheless, strides are being taken to correct this seemingly moral inequity. The World Intellectual Property Organization (WIPO) through its Creative Heritage Project is “developing resources for the strategic management of intellectual property rights and interests by cultural institutions, so as to both preserve and protect cultural heritage” (Vézina 2010).
For now, the owners of the trademarks of Pusser’s Painkiller and the Dark ‘n Stormy cocktail can be viewed as caretakers of their respective communities’ cultural icons.