The IP-ologist: The Intellectual Property in the After Dinner Drink

Being on lockdown during the Coronavirus Pandemic has made many people reflect on the things they are missing: time with friends and family; visiting cafes; dinner at restaurants; and even a drink at the bar. This made me think of the place I would most like to visit and the drink I would most likely order once the lockdown was lifted – Dukes Hotel, London – dry Martini.

This drink may seem simple, but a lot goes into this classic after-dinner drink under the surface at Dukes. The barman pouring, peeling, swirling; the distiller distilling, the botanist infusing, the glass blower, lemon grower. All have come together to produce those fleeting moments with the drink. The last time I sat in Dukes savouring this creation I wondered: just how unique can this famed drink be? Is this the definitive version and is it possible for it be replicated elsewhere? The after-dinner drink is the perfect companion when considering these questions.

The Martini at Dukes is special, it is served in the very place where Ian Fleming sat and began conceptualising James Bond. You are surrounded by cosy armchairs, portraits on the wall and subtle lighting. There is the faint noise of the rosewood trolley being wheeled from table to table. It is the surface on which each medium dry Martini is prepared. There is no need for a shaker with this classic, but that doesn’t mean it’s stirred. Shaking and stirring cocktails is done to bring the temperature of the drink down when it is mixed with ice before pouring. At Dukes this is achieved by keeping the essential ingredients in freezing temperatures until the very last moment. Vermouth is swirled around the iconic martini glass and this is a special mix. The gin is poured, then twist a thick and freshly cut Amalfi lemon peel over the glass to release its oils and add as a garnish. There you have it, simplicity itself, a classic dry Martini, perhaps unlike another other. Read on to see just how much intellectual property could go into this classic and why the Martini at Dukes remains so unique.

Image courtesy of Gilly Collins

The swirl of Vermouth

It may only be a few drops, but it can make all the difference. The vermouth takes any edge off the accompanying spirit but it is used sparingly at Dukes (if not thrown on the floor). It is made with a base of English wine from Sacred distillery in Highgate in collaboration with Alessandro Palazzi, Bar Manager at Dukes.

From an intellectual property standpoint, the recipe for the vermouth mixture could be kept as a trade secret and be protected under the law of confidence. The common law of confidence protects individuals or businesses from the misuse of confidential information and this is a good way of protecting recipes or mixtures which set creations apart from one another. There is a caveat though, protection is only available for information provided it is not apparent in the final product. The recipe for Coca-Cola is a famous example of trade secret protection being available to a drink, though its unlikely that it would ever find its way into a martini at Dukes.

Provided the vermouth mixture was a secret at its inception, was always imparted to other bar staff on the basis that it was confidential and then subsequently used without authorisation (at another bar) then there may be a breach of confidence. Alternatively, mixologists may turn to copyright to protect their creations. However, as a recipe is a set of instructions it is unlikely to be protected under UK copyright law. Once printed though, the typographical arrangement of a recipe book or cocktail menu would likely be protected but this would not preclude others from mixing and serving the same drink, only from copying the physical menu. Best thing to do if you come up with a unique vermouth recipe – keep it a secret.

The measures of Gin

Five measures of Plymouth Gin are poured, filling the glass. Vodka is available and a number of other gins are kept in the freezer awaiting request. This is the substance of the drink.

Plymouth Gin is unsurprisingly made in Plymouth and the distillery was established in 1793. Since then it has batch distilled its gin in the original Victorian copper still. At 41.5% Vol it is on the marginally stronger side.

There are a number of interesting intellectual property issues when it comes to spirits and Plymouth Gin has had its angel’s share. Most recently there was a trade mark dispute between Plymouth Gin and Boutique Coffee Brand Limited which sought a similar registered trade mark featuring the word Plymouth and an image of the Mayflower. Plymouth Gin was successful in protecting its similar EU registered trade marks, part of brand protection strategy to prevent dilution.

In order to focus on trade mark protection, in 2015, Plymouth Gin choose not to renew the EU regulated Protected Geographical Indication status for its Gin, having previously been the only spirit in England with the status. Protected Geographical Indication status has been used to protect products with strong heritage linked to geography – Stilton cheese, Jersey Royal potatoes and Scotch whisky are notable examples from the UK. In one sense it is a strong protection for a particular name, but not necessarily for an individual brand as it applies to the region and not just a manufacturer. As a result, Plymouth Gin appear to have taken a step to retain closer protection of the brand through the portfolio of registered trade marks that it holds, including the word PLYMOUTH.

Apparently, the protected geographical status in Plymouth Gin emerged from a series of court cases in 1880s brought by owners Coates & Co. claiming that London distillers were passing off their creation by making and selling a London variety of ‘Plymouth Gin’. There are also various sources referring to 1933 when there was apparently a case between Beefeater Gin (James Burrough Ltd) and Plymouth Gin (Coates & Co) over whether a London distillery could produce Plymouth dry gin. Sadly the relevant law reports are hard to come by, but it shows the importance of protecting a brand name.

The Plymouth Gin’s Logo contains an image of the Mayflower, but this was not always the case. The branding had changed to a more 1930s design, with Art Deco influences at one point, but this was changed back in 2012 and registered trade marks in the logo was filed in 2011 to more resemble the mark it has purportedly used since 1991 and a separate mark from 1998.

Plymouth Gin states that it is documented at the turn of the 20th Century as the Gin used in the Margeurite, the original dry martini. Maintaining a portfolio of registered trade marks is a good way to protect the brand, its reputation and its heritage so that they are always considered together. That way when you see Plymouth Gin sticker on the bottle being poured, you know you’re on the right track.

The Amalfi Lemon

A twist of lemon is all that is required.  The Lemon that provides the oils and garnish are from the Amalfi coast.  Amalfi lemons have particular qualities that make them more desirable in this drink preparation – they are oversized, sweet, virtually juiceless, but have a fragrant zest.  This creates the perfect garnish.  

Amalfi lemons are themselves famous and have been part of farming on the Italian coast for hundreds if not thousands of years. Lemone Costa d’Amalfi received Protected Geographical Indication (PGI) status for the lemons grown within the 400 hectare area by the coast. As mentioned above for the Gin, Protected Geographical Indication status promotes and protects the names of quality foodstuffs by ensuring that only products genuinely originating as from the region are allowed to be identified as such. The European Union has nine protected denominations for lemons and six of them are from Italy. The designation of origin is perhaps the best intellectual property protection for a lemon coming from a region that has a reputation.

Another form of intellectual property right (albeit rarely heard of) that may be of interest to fruit growers is the plant variety right (also known as the plant breeders right). This enables breeders of new varieties of plants to have exclusive control over the propagating material, including fruit. Recently, there was a Community Plant Variety Right case involving ‘Lemon Symphony’ but this case actually related to Osteospermum ecklonis – a species of African rain daisy and sadly not actual lemons.

The preparation of the Martini

With the trolley next to the table, the barman prepares the mix. Viewing the artistry on show, you would be forgiven for thinking that the act of creating the drink could (or should) be protectable as a form of intellectual property. This method of preparing a Martini was introduced to Dukes in the mid 1980s when the bar was managed by the legendary Salvatore Calabrese and subsequently kept up by Gilberto Preti. It was Salvatore who designed the “direct Martini” method using frozen gin (and frozen glassware).

Leaving aside whether there is a case out there for protecting the pouring of a drink, sprinkling salt has been the subject of intellectual property proceedings. Nusret Gökçe, otherwise known as ‘Sal Bae’ had tried to registered a particular motion trade mark – a three second clip of him sprinkling salt down his arm onto steak. Much of the trade mark application was rejected and he was not able to obtain a registered trade mark for providing food in this manner (but was able to register the mark for other limited goods and services). Perhaps this case leaves the door open for pouring a drink to be registered as a trade mark particularly someone with a great reputation like Alessandro. Whether it would be worth it and how it would be enforced are issues that would have to be addressed. But with that, our drink has been poured and the swirling mix is ready but there is a further consideration.

The Martini Glass

The martini glass is unmistakable. It is of course named after the drink. The design is functional. Its longer stem prevents you from warming up the mix and the widened bowl allows the gin to gain greater exposure to the air. The botanical aroma would be harder to grasp in a narrower vessel. The conical shape of the bowl prevents the garnish sitting at the bottom, but rather infuse the whole drink.

The intellectual property to contemplate here, is the design right. A key consideration when it comes to design rights is whether the design in question is so common place so as to not be protected – the design must be original in order for an unregistered UK design right to subsist. You may think that such a variety of the martini glass design that it is common place, but is it? The same question has been raised in relation to a tall pint glass. In that case the court considered the relevant field of design which was specific to beer glasses. Similarly, our martini would most likely be judged against other martini glasses (rather than the broader category of cocktail glasses). Four features of the pint glass were considered, but the one which was considered most significant was the outer profile which included an elongated tulip shaped section tapering in to the rim about the waisted section which was considered original. Whether the internal and external features of the bowl section of the martini glass which tapers to the stem are capable of being considered equally original remains to be seen.

That a martini glass could be registered as a design right is a different question, but the applicable issues were also considered in the pint glass case. The informed user (likely to be a martini glass user, though not necessarily a martini drinker), the limited design freedom in a Martini glass (which due to the need for a conical bowl and long stem may mean that minor differences may convey individual character) and overall impression would all be considered when determining whether a design is sufficiently original. A connoisseur (but perhaps not everyone holding a martini) would see that the glass at Dukes is notably distinct. It has a steep but deep and narrow bowl. Held up to another martini glass, the difference may be quite notable. The time to register the glass used at Dukes has since passed however, but for a new Martini glass, protection may be available.

A brief note on the cocktail shaker, which is not used for a Martini at Dukes.  It has been the subject of patent applications on numerous occasions, including by G.S. Bryce for the standard 3-piece shaker fitted with cork, a strainer and a metal stopper – worth looking up.

The Martini itself

There it is, the drink is fixed.  With that first sip, which should be ice cold, you are confronted by the selection of botanicals from the gin, the subtle notes of the vermouth and the hint of the Amalfi lemon.  You may at this point want to savour your drink, but there is one last intellectual property consideration: the taste of the Martini itself.

Unfortunately, for those hoping to protect the taste of a uniquely crafted Martini, it was recently decided that taste was not be protected under copyright in the EU. The case involved cheese, and it was set out that a food product is not a work capable of being protected by copyright due to the lack of objective identification of the taste of food. This is likely to be extended to the taste of a drink. Whether the smell of Lancôme perfume is protectable by copyright has been considered in various European courts. Maybe, when it is possible to objectively identify flavour, the taste of a Dukes Martini will become protectable but the impression of one Martini may be quite different from the second glass and at Dukes there is a two Martini limit.

But there you have it: a classic with not too little intellectual property flowing.  For some reason it tasted different at Dukes – I recommend a visit.

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