A Negroni By Any Other Name
Can definitely not be a Dark 'n Stormy. We dive into the seas of cocktail ownership, authorship and history.
This week, bartenders around the world will pour hundreds of thousands of Negronis and while Campari will probably make millions from those sales, the descendants of Count Negroni won’t make a cent—unless they are working for someone in the supply chain. Why? Because their ancestor invented a drink so famous, no one can own it and no royalties apply. Not even for Campari, the only proprietary ingredient in the recipe.
The Law of the Drink: Your Cocktail, Your Rules (and Someone Else’s)
Every now and then, I’ll be at a bar and something incredible lands in front of me. Maybe it’s a really clever twist on a classic, or a name so sharp it makes me smile before I even take a sip. Usually, it’s something so unique and delicious, I’m intrigued. You fall in love with it, you ask for the spec and the next thing you know, you’ve got the ingredients list scribbled on a napkin or shorthanded in the Notes app on your phone. Then you’re in your own prep kitchen, wrangling the measures and you wonder if you’ve nailed it or failed completely. Maybe a little tweak or two, maybe the perfect representation and then you wonder… Can I just put someone else’s recipe on the menu? What are the ethics and legalities of using other people’s recipes or cocktail names?
The short answer is: you probably shouldn’t. And the reason for that little hiccup lies in a bizarre legal dance between copyright and trademark law. While the global principles are similar, here in Aotearoa—some things are fair game, and others are very much off-limits.
Let’s start with the easy one: the recipe itself.
The Recipe: A Love Letter, Not a Law
When you’re reading a recipe in a book, on a menu, or a website, that specific text—the flow, the phrasing, the little story about how the creator came up with it—is protected by copyright under the Copyright Act 1994. It’s an original creative work, just like a poem or a song. This is why the head notes of a recipe are so important, including the way you express your original idea conceptions and how you arrived at the variations.
But here’s the key part: copyright protects the expression, not the idea. You can absolutely learn the ingredients and the proportions of that drink and make it for yourself. You can even write your own version of the recipe in your own words. Copyright has no problem with you stirring up a storm in your own living room; it only cares if you steal the love letter itself, not the technique behind it. Think of it like this: anyone can write a song about lost love, but you can’t use the exact lyrics to “Yesterday.”
The Name: Where Things Get Personal
The real power play in the spirits world is with the name. This is where trademark law steps in. A trademark is a word, phrase, or logo that identifies the source of a product or service. When it comes to a cocktail, it’s all about protecting that unique name and the reputation it carries.
Goslings vs. Pernod Ricard
One of the most famous examples is the Dark ‘n Stormy®. Yes, you read that ® right. You might think it’s just a combination of dark rum and ginger beer. And it is. But the name “Dark ‘n Stormy” is a registered trademark of Goslings Rum in many countries, including the US.
When Pernod Ricard released their “Dark N’ Stormy” and “Black Stormy” cocktails on the Malibu Rum website, they were considered just too close for comfort for Goslings. Goslings won a trademark infringement lawsuit in the US, meaning any drink marketed as a “Dark ‘n Stormy” must use the authentic recipe featuring Gosling’s Black Seal Rum.
Most importantly, the ruling meant bars serving a “Dark ‘n Stormy” with any other rum could face legal action from Goslings.The dispute highlighted just how seriously Goslings takes its legacy—and its recipes. They argued that using similar names would confuse customers and dilute the brand’s reputation.
While the general principle applies, for that name to be legally protected in New Zealand, it would need to be registered with the Intellectual Property Office of New Zealand (IPONZ). And guess what - it is. So think carefully about what you name that ginger beer and rum concoction.
Another lesser known example is the Pusser’s Painkiller. Pusser’s Rum trademarked the name for its creamy, tropical concoction of rum, cream of coconut, pineapple, and orange juice. Just like the Dark ‘n Stormy, if a bar isn’t using Pusser’s Rum, it can’t sell a drink by that name in countries where the trademark is registered. (Yep, it’s also registered here, but Pusser’s Rum is hard to get hold of and I’m yet to see this drink on a menu).
The Most Powerful Storm
The reason trademarks are so powerful is that they prevent consumer confusion. They tell you that when you order a Dark ‘n Stormy, you’re getting the genuine article from the people who created it. It protects both the brand and, ultimately, you. This is why a name like “Vodka Soda” is not trademarkable—it’s merely descriptive. It’s not distinct enough to be a brand identity.
So should you rush to trademark every new creation you think will take the drinks world by storm? Probably not. Just because it’s trademarked, doesn’t make it famous.
So Famous, No One Can Own It
How do you know you’ve really created a iconic recipe? It’s so famous, no one can own it. Which is why the descendants of Count Negroni don’t earn a cent from the millions of Negronis served this week or will earn a cut from every bottle of Campari sold. It’s because the cocktail and its name have entered the public domain. When Count Camillo Negroni requested a stronger Americano with gin in 1919, he wasn’t creating a product to be sold on a shelf, but rather a modification of an existing recipe. He never trademarked the name “Negroni” or filed for any legal protection, and it soon became a generic term for a widely accepted recipe without proprietary ingredients.
Because the recipe and its name were never legally protected, they are now considered part of the public lexicon, free for anyone to use, create, and sell without owing royalties to the Negroni family. This is why Campari does not have a legal entitlement to the Negroni or Americano cocktails; they are simply classic recipes where Campari is a key ingredient, but not a proprietary element of the drink. While Campari actively promotes its role in these drinks to boost its brand and works with organisations like the International Bartenders Association (IBA) to solidify its status as the official ingredient, the recipes themselves remain in the public domain. This highlights the crucial distinction between a brand’s promotional partnership with a cocktail and actual legal ownership of the drink.
The Secret Ingredient: The Final Boss
What if you’ve got a recipe that’s so unique, so special, you want to protect it entirely? In New Zealand, the protection for this sort of thing falls under trade secrets, which are primarily protected by common law and contracts, rather than a specific Act. Think of the Coca-Cola formula—it’s a secret held in a vault.
For a cocktail, a trade secret might be a proprietary blend of bitters, a unique house-made syrup with a secret ingredient, or a specific process that no one else knows. As long as you keep it under lock and key and have agreements in place like an NDA (Non-Disclosure Agreement), the law protects you from someone trying to steal that confidential information.
And these days, it’s every recipe creators dream — to create something so unique it becomes iconic. A new classic.
The Bartender’s Legacy: Your Name on a Glass
For bartenders and consultants creating a drink for a bar or a brand, the legal situation is often a matter of contract law. As with any intellectual property created during employment, unless a specific agreement states otherwise, the rights to the creation often belong to the employer. This means the bar or brand would likely own the trademark for the cocktail’s name, and the “expression” of the recipe (if it’s ever written down by them). This is the kind of small print clause you want to review your contract for or if you’re consulting — be extremely clear with your client as to exactly what they are purchasing from you and the license to use the recipe and/or technical specs exclusively.
However, a creator’s legacy is rarely just about legal ownership. Take Dick Bradsell, for example, the legendary British bartender credited with inventing the Espresso Martini and the Bramble. While he created the Espresso Martini for a customer in the 1980s, the name itself was never legally trademarked by him. His enduring association with the drink comes from his reputation and the widespread public acknowledgment of his role in its creation, not from a specific legal document. This “moral ownership” is often the most powerful form of recognition a bartender can have in the industry, even without a formal trademark. So too with the Cosmopolitan, credited to Toby Cecchini, who developed his modern recipe at The Odeon in New York City, 1988.
Think Naked & Famous, developed by Joaquin Simo at Death & Co in 2011, making it a relatively recent addition to the cocktail world, notes Difford’s Guide. It joins a collection of what the IBA calls “new era cocktails”, recipes so pervasive and widespread in the last 25-30 years, they form the new lexicon of modern classics. And let’s be honest - some of those drinks are older than the bartenders serving them which begs the question what comes after the new era?
The Paper Plane is a harmonious blend of bourbon, Aperol, Amaro Nonino, and fresh lemon juice, created in the 2000s by Sam Ross. Sam was actually working at Milk & Honey in New York at the time, but created the drink for another venue. He also penned the Penicillin, another drink that feels like it’s been around forever but is only about 20 years old.
The major difference? While the history and authorship of many classics that fueled the cocktail renaissance of the early 2000s are lost to the ether of time, modern technology has enabled the authorship of these new drinks to be retained and recorded by writers and historians like Simon Difford, Gary Regan, Dave Wondrich, Jim Meehan, Sasha Petraske and Jeffrey Morgenthaler to name just a few. You can even still grab a drink in some of the bars these great drinks were created.
Yet, we still neglect to list spirits by name on our cocktail menus, let alone the recipe creators and we rarely take the time to credit the luscious, rich history by which these precious recipes and techniques came to us.
Surely No One Would Prosecute Me?
Employment and contract law in New Zealand is pretty clear cut about Intellectual Property and Confidential Information. You’re most at risk if you walk out of one job and into another with a notebook full of proprietary specs and processes if you’ve signed a contract that says any work you created while under employment belongs to the bar or the brand. Just the same as confidential information like budgeting forecasts, contracts and competitive pricelists. And similarly, most of the time your creative knowledge travels with you but you have to leave the recipes behind.
Creating Legacy
The chasing of new ‘classics’ is far from over. Bartenders are actively creating drinks that transcend menus and enter the public consciousness, particularly through hospitality networks. Bacardi Legacy is based on the premise.
Unlike trademark law, which protects a name for a company, competitions are all about building a bartender’s legacy. And brand/bartender partnerships can create iconic recipes that transcend culture (although I’m still not sure anyone immediately thinks Goslings when they read Dark ‘n Stormy on a menu). A Legacy Drink is simple, reproducible, and has a compelling story—a drink that can be made anywhere, by anyone, and will be remembered long after the competition is over. A drink’s legacy is built on deliciousness, reputation and public adoption rather than legal protection.
So, in the end, the law of the drink is pretty simple: you can copy the recipe, you can even copy a name but you can’t copy the trademarks (at least, not in the countries where it’s trademarked). What we can do a better job of is narrating history and the story of how that drink you loved made it’s way from a napkin spec to your menu in your bar.
And now you have a good story to tell the next time you’re at a bar and spot a “Stormy Night” on the menu that looks an awful lot like a classic Dark ‘n Stormy.
This is my favourite read on here yet.
Cheers Tash.