Who Owns This Drink?February 21, 2012 By: Jack Robertiello
When the debate about bartenders’ intellectual property — drink concepts and recipes, mainly — broke out, I admit to being completely without interest. But something that’s now in federal court should give everyone in the drink business pause.
Kieran Folliard, a former Minneapolis-St.Paul pub owner, was once Jameson's best customer, and his bar was promoted around the world as the biggest seller of the iconic Irish whiskey. But now he's suing the distiller over a drink made with competing whiskies.
Folliard this month sued the makers of Jameson “to prevent the spirits giant from promoting its own version of a whiskey-and-ginger-ale cocktail made famous at the [Folliard’s] Local in Minneapolis, once one of his Irish pub establishments,” according to the Minneapolis Star Tribune.
Folliard is suing, according to the report, to prohibit Jameson from marketing the “Big Jameson Ginger,” because of the drink name's similarity to his own signature highball, “The Big Ginger,” that his bars have sold since 2005.
“Considering the affront of this strike on my business and livelihood, I did not have a choice in this situation," Folliard said of the lawsuit in an e-mail to the Star Tribune. “I couldn't NOT take this road. This is not fun for me; nobody wants to enter court.”
The lawsuit says Folliard rejected an offer of $200,000 from Pernod Ricard in 2009 for the right to use the Big Ginger name as inadequate.
The Local, formerly owned by Folliard, was promoted by Jameson for years as the largest on-premise seller of its whiskey in the world, about 40 bottles a day, mostly through the Big Ginger and a “skinny” version. Folliard is seeking an order to prevent Jameson from using a drink name that incorporates “big” and “ginger,” on the grounds that those words are protected by a trademark issued by the U.S. Patent and Trademark Office in 2009.
Of course, that’s the only way anyone really can protect their intellectual property, which was the main reason I’ve thought this was a dead-end street for most bar folk; getting into a suit with anyone, let alone a well-financed international spirits company, can be an endless and costly road to take.
The Big Ginger, for those who have never heard of the annual promos around the big seller, includes Irish whiskey, ginger ale and wedges of lemon and lime. So, you see, there’s already an issue: The drink differs from a Horse’s Neck only in the switch to Irish from bourbon, and the citrus wedges rather than a lemon peel. I’m sure that will soon be part of the suit, seeing as the Horse’s Neck has been around since, well, there have been horses — or at least ginger ale.
Things got hot for two reasons: 1) promotions for the Big Jameson Ginger cocktail began to show up in area bars and restaurants and 2) no doubt the issue started to boil when Folliard replaced Jameson with his own house brand of Irish whiskey called 2 Gingers. Folliard now is out of the restaurant biz and focusing solely on his spirit enterprise, which complicates matters a bit.
Bartenders interested in establishing their own intellectual property should watch this case, especially the costs involved. Asserting that something is yours is one thing — take it from a journalists who has seen his work appear under other’s names for years. But proving it and suing to establish it is quite another matter, sucking up unimaginable dollars and hours, as I imagine Folliard is about to discover. I don’t know whether his case is provable or not, but it gives another twist to the idea that someone can “own” a drink.