Hardly a day goes by without the media reporting on some sort of trademark dispute. Enter the need for a winner and a loser, a bully and a victim.

You know the typical media drill by now, Goliath is the trademark owner and a guilty bully, and David, of course, is an innocent victim, lacking any personal responsibility whatsoever.

This week’s David, one of the most recent “victims” of so-called “trademark bullying” is the Sazerac Lounge in Grand Rapids, Michigan, apparently soon to be known as Reservoir.

The problem with the automatic victim label for the little guy is that the owner of any business — even a small business — bears responsibility for the name selected, and in this instance, even a free search on the USPTO database would have revealed The Sazerac Company, Inc., as the only owner of federally-registered trademark or service mark rights in SAZERAC: the mark being registered since 1955 for “alcoholic cocktails” — with a claimed first use date of 1895.

In terms of even minimal due diligence, a free USPTO search of the term also would have revealed the company’s federally-registered rights in SAZERAC for “restaurant services” since 2003, with nationwide constructive use rights dating back to 1999, and a claimed actual first use date of 1926. For goodness sake, even putting aside the multiple federal registrations in existence and a matter of public record long before the opening of the Sazerac Lounge some seven years ago, the dictionary even notes the trademark status of the term.

Maybe someone ought to update the slanted “bullying activities” section of the Wikipedia page for Sazerac Company to get the facts straight.

I’m all for supporting true victims, but more than big and little is required for a proper analysis to determine whether the tempting sympathetic label actually fits.

  • Mixologists take note: trademark your cocktails! Your post nicely follows Tim Kenny’s presentation about The Big Ginger (R) at the Midwest IP Institute. I do wonder,though, how well the “Sazerac” mark has been enforced over the years and whether there is any case for genericide here, at least with regard to the cocktail. The dictionary definition is good evidence against genericide, but I can’t recall ever seeing “Sazerac” with an (R) on a bar menu. And personally, for what its worth, I never thought the name indicated a single source and would never have thought to read it as “Sazerac brand alcoholic cocktail.”

  • Kyle K.

    I agree, and would also question the _source_ of a cocktail. If it comes premixed, sure, but the source is the bartender, not the ingredients.
    (I’m sure this has been discussed a bunch before, as I know Sazerac is famous for sending cease and desist letters.)

    As for restaurant services, I think the little guy is probably hosed. But the question is not whether Sazerac legally has a right to enforce its mark–the question is whether it’s “right” to do so, at least in the public opinion. And people think it’s OK to name your restaurant after a drink that you can get in just about any restaurant, actual trademark rights be darned.

    I’m not sure what advice I’d give to Sazerac. It seems like simply promoting their rye as “real” Sazerac — “the rye so good they named a drink after it” and letting most of the derivative uses go away is probably the best PR strategy. How that translates into an IP strategy, well, let’s just say I don’t practice in that area anymore…