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Will the Real Dark N’ Stormy Please Stand Up?

The cocktail containing rum and ginger beer is causing a commotion in court.

Photo Illustration by Emil Lendof/The Daily Beast

The origin story of the Dark n’ Stormy is so compelling that it earned the drink a trademark—one that the owners, Gosling’s Rum, have just filed a lawsuit to protect.

The story of the Dark n’ Stormy begins in 1806 when Englishman James Gosling set sail for America. The son of wine and spirit merchants, he hoped to expand his family’s business in Virginia. But after three hard months at sea, Gosling resigned to a new home, parking his ship at a port in St. Georges, Bermuda. There he devised a recipe for aged black rum that, once popular, he began selling in old British champagne bottles which he sealed with black wax—hence Gosling’s Black Seal Rum.

By 1850 Gosling’s Black Seal was a hot commodity. The liquor piqued the interest of nearby Royal Naval Officers, who tried putting it in the ginger beer they’d been brewing, to help with seasickness. The combination was delicious. The dark coloring, not quite as appealing, led a sailor to famously remark that it was “the color of a cloud only a fool or a dead man would sail under.” The Dark n’ Stormy was born.

After proving the authenticity of the story, Gosling’s Rum, owned by the direct descendants of James Gosling, won a trademark on the cocktail in 1991. It mandates that for a Dark n’ Stormy to be marketed as such, it must be made using the original substance it was made with: Gosling’s rum. For years, the Gosling family has vowed to “vigorously” defend its rights to the real cocktail, claiming they would fight those who tried to “cheat” and “capitalize” on it.

This week, the Goslings proved they mean business.

In an 18-page complaint filed to federal court, E. Malcolm Gosling Jr. and his brother allege that the liquor conglomerate Pernod Ricard has committed federal trademark infringement. Their case stems from a recipe Pernod Ricard posted for a Dark n’ Stormy in 2014 on its website. The drink calls for ginger beer, just like Gosling’s original, but suggests a different main ingredient: Malibu Island Spiced Rum.

The lawsuit claims that Gosling not only invented the cocktail, but is the driving force behind its popularity today. The company owns not one trademark on the name, but five, extending to clothing, kits containing rum and ginger beer, “bar services,” and the premixed version of the drink.

The Bermuda-based company says its “expends considerable resources” to promote the drink through advertisements on Facebook, Instagram, Twitter, and Pinterest. It creates original content on YouTube involving the drink as well as branded areas at sporting events (e.g. “Dark n’ Stormy” boardroom at Fenway Park and tavern at the PGA). Through this work, the company says it has earned “significant goodwill and widespread recognition” throughout the U.S.—recognition that, the lawsuit implies, is in danger of disappearing.

The Gosling brothers argue that Pernod’s Dark n’ Stormy recipe, which features Malibu Rum and a lime, is threatening not simply because of its potential to take business away from Gosling, but because the recipe itself is incorrect. “Through its unauthorized use of the DARK N’ STORMY Marks in commerce, defendant has infringed and continues to infringe Plaintiffs rights…so as to create the likelihood of confusion, or to cause mistake, or to deceive the public as to the nature, source and sponsorship of Defendant’s products,” the complaint reads.

At the end of the complaint, the Gosling brothers seek both monetary damages from Pernod, as well as a permanent injunction barring the company from using the Dark n’ Stormy name. “Defendant’s actions are knowing, willful, deliberate and performed with the interest to trade off of Gosling’s goodwill and reputation tied to the iconic Dark ‘N Stormy marks,” reads the complaint. “Defendant’s wrongful conduct has caused or will cause Gosling to lose control over the goodwill and reputation associated with the Dark ‘N Stormy marks.”

Whether one liquor brand can stop another from marketing one type of cocktail is up for debate. Experts estimate that out of the thousands of cocktails in existence, just a handful of them are trademarked. Among them: The Painkiller, Sazerac, and the Hand Grenade. According to Legal Zoom, the specific ingredients in a cocktail cannot be copyrighted, but the drink itself can be trademarked. “It is not possible to copyright protect a name, but some unique names can be protected by trademark,” it says. “A trademark can prevent other bars or restaurants from using a drink name, and it can also require bars to make a trademarked drink with certain ingredients.”

Two intellectual property professors wrote about the topic in a Freakonomics post from 2010 titled The Creative Cocktail. In it, the authors raise an important point regarding the hypocrisy of “owning” a particular beverage. Cocktails, they point out, are handcrafted, served by individuals, and enjoyed in a variety of places. No matter how similar the name, the recipe, or the ingredients: They’re never, actually, the same.