The Abbott's Bitters Debate

I'm going to preface this post with a statement of respect for both of the parties involved in this issue. Darcy O'Neil has a lot of intriguing information on his site and I loved his "Science of Taste" presentation I saw at Art of the Cocktail so much that I asked for permission to share some of it on my site. He also wrote a fascinating book on the history of soda called "Fix The Pumps," which you can order from his site. I also love Tempus Fugit products, which are sadly unavailable in Canada, but thanks to a couple Seattle trips I have their creme de violette and amazing Gran Classico on my liquor shelf at home. The purpose of this post is only to discuss how interesting this dispute is, what it might become, and to set up further discussion on the topic of trademarking in the cocktail world.

Let me also say that I am not a lawyer nor a trademark agent. I have some trademark knowledge, and was coincidentally already doing further research on the topic for a future article on the Sazerac mark and its ownership by the Buffalo Trace Distillery (I won't get into that now). My intention is only to discuss this dispute objectively because I think it's fascinating. Also, I've noticed some comments on this topic mentioning copyrights and patents - these are not the same as trademarks. The issue of Abbott's Bitters is trademark related, and has nothing to do with a copyright or a patent. 

I want to be thorough, so this is going to be detailed. If you just want to know the basic case on either side, skip to the end. Definitions, history, and references are in the body of this post.


There is a type of aromatic bitters called "Abbott's" that, while unknown today, were very popular around the turn of the 20th century. These were said to have been the bitters of choice for the original Manhattan Cocktail before declining in popularity and eventually disappearing. This of course makes them extremely desirable to cocktail nerds everywhere. Vintage bottles popped up for ridiculous prices online, and thanks to Robert Hess, a mass spectrometry was even performed on an old bottle to help determine its ingredients. Here's where Darcy O'Neil steps in. Being a chemist by trade, O'Neil took one look at the mass spec and saw immediate flaws in the results. He decided to pursue the creation of authentic Abbott's Bitters by doing extensive research on their history, ingredients, and chemistry. It is naive to assume that other cocktail nerds weren't either interested in or already developing the same product, and that's exactly what happened.

Tempus Fugit is a spirit and liqueur company based in California that distributed absinthes before branching out into other products. They manufacture some high-quality liqueurs as well as some bitters, including Gran Classico (which is similar to Campari). They have the intention and the means to develop, manufacture, and sell a version of Abbott's Bitters, as they own both the trademark to the use of the name as well as a design mark for the original label. The dispute here is that O'Neil, regardless of whatever work he's done with his bitters, plans to sell a product using the name "Abbott's Bitters," which is a registered trademark belonging to Tempus Fugit.

Not surprisingly, Tempus Fugit sent O'Neil a letter politely informing him that they own the trademark to the name. You can see both the letter and O'Neil's response on his post here.

I would like to clarify some concepts and definitions to the best of my understanding, particularly with the Supplemental Register as there seems to be some confusion. Let's quickly look at trademarks before getting into this:

Trademarks are given to names, descriptions, taglines, phrases, or any recognizable combination of words, as well as logos, designs, fonts, and any recognizable visual media (incidentally, also sounds - like the MGM lion roar). For example, Coca Cola the name is a registered trademark as is the font and design in which it appears on the can/bottle. Another example is the phrase "it gives you wings," which is owned by Red Bull. Trademarks protect particular wares/goods (so, for Abbott's - 'alcoholic bitters') and services (like "restaraunt services") . So for example, "it gives you wings"... if a third party attempted to file for a similar ware, like 'fruit juices', it would be rejected for being confusing to customers. However, if it was used for raincoats, there's a possibility you could get that trademark for clothing wares. (I haven't looked up Red Bull's trademarks to confirm, I'm just trying to make an example). The United States has two Trademark registers:

Principal Register: essentially, a mark on this list means that it is inherently distinctive, its marks are eligible for distinctiveness, has evidence of use, and is incontestible.

(A note on terms here, distinctive means that it is distinct in the market, so if you look at the beer aisle, consumers will recognize Stella Artois, or if you walk into the pop aisle consumers will recognize Coca Cola. Or, as Darcy mentions in his post, if I say Angostura, you say bitters. If I say Levi's, you say jeans.
Marks refer to trademarkable images, phrases, names, etc.
Use (i.e. intent to use) refers to the product existing in the market by means of it being physically sold to consumers. This is important here, because taking pre-orders or discussing the product may not count as use.)

Supplemental Register: A trademark on this register is still a registered trademark. It will still bar any future applications for the same trademark. Here's where things are a little interesting, however: "A mark on the supplemental register can never achieve incontestability. As such, should a third party be able to show earlier use of a confusingly similar mark, it can move to cancel a registration..." This means one can contest the ownership of a trademark on this Register.
Having said that, there are benefits from registration on the Supplemental Register:
- it is a secondary option for registering marks that have the potential to be distinctive
- it serves as a bar to registrations of confusingly similar marks
- it gives priority rights to registering a mark in other countries
- it is a means of protecting a mark while disctinctiveness is acquired

Another important note here: The Trademark Office does not require a mark to be on the Supplemental Register for five years before it can be considered for the Principal Register. A company can apply for registration on the Principal Register again at any time, and if it only takes say one year to acquire distintinctiveness, then they could be on the Principle Register in one year.

O'Neil does give links to the trademark records on his post (these are available to the public). It should be noted that there is nothing "shaky" about Tempus Fugit's registration. There is one reason why the "Abbott's Bitters" mark ended up on the Supplemental Register: it's a surname - a generic one at that. It is a rule that any generic surname can not gain registration on the Principal Register unless or until it achieves distinctiveness. So, it automatically ends up on the Supplemental Register until this distinctiveness is acquired. (Keep in mind there is a brand of Abbot's beer and Abbot's wine, separate parties currently in use of the name, albeit with only one "T.") The Supplemental Register most certainly does "provide evidence of trademark rights," it just isn't incontestable.

The only other issue here, which is of less concern, is the image/logo. Tempus Fugit owns the rights. It's as simple as that, there's no argument here. It WAS public domain, and they were granted the trademark for its use, which means it's not public domain anymore. If it was wrong or impossible to get a trademark for something that's public domain, it would not have been granted to them.

Let's look at this from Tempus Fugit's point of view:
- they own trademark registration on the Supplemental Register for the name "Abbott's Bitters" dating back to the date of application (not when it was granted) in 2009
- they have intent to use, as they claim to be developing the product or already have a completed product
- they own the trademark rights to the use of the logo on the Principal Register, which is incontestable
- they have already paid an attorney to handle the trademark registrations, which means that a professional has already viewed the case from every angle and given them the best possible protection. In other words, they've handled this from a business perspective and invested in their product
- their applications aren't "weak," in fact they're strong - otherwise they would not have been granted registration
- they are policing their trademark, as is required to maintain distinction (which just means ensuring nobody else is using the name)
- they have filed for registration in Canada
- they have no transferral of product as it's not for sale yet

Now let's look at this from O'Neil's point of view:
- he has no trademark rights on either register for the name nor the logo
- he has intention of use, public discussion of his intent (albeit in a niche market), and pre-orders for the product itself. These are very low levels of use because there is no transferral of product, but may count for something. Although, there has also been discussion of Tempus Fugit's product.
- he wants to prove that Tempus Fugit's mark registration is "shaky" because "Abbott's" is an old and known brand-name. Proof of this would include that it's already available at stores or on menus at cocktail bars, for example. He would have to prove that Abbott's is a generic term in a consumer's mind, and is well-known in the marketplace.
- to contest the name mark, he would have to prove some sort of significant use prior to 2009 when Tempus Fugit applied for registration
- he has not acquired legal council of any kind yet, which is going to cost a lot of money (likely tens of thousands of dollars)
- if he wants to acquire the trademark for himself, he will face the same problems Tempus Fugit did, and his mark will be just as vulnerable. He would still have to apply for the trademark after going through the process of proving that Tempus Fugit shouldn't own it


I encourage everyone not to react negatively towards either party here. Tempus Fugit has done nothing wrong - they wanted to make Abbott's Bitters and they secured the trademark rights to do so, which is what any business would and should do. O'Neil should be commended for his extensive research on the subject and I truly hope I get to have a bottle of his bitters regardless of what they're called. The reality is that he viewed this project as research and not as business and unfortunately once the exchange of money enters the picture, it's a business issue. In a perfect world I would love to see both parties work together to develop an Abbott's Bitters. They could pool their information and research, and O'Neil could bring everything he knows to Tempus Fugit, who likely have much larger and more efficient production means. I also hope that this doesn't become a lengthy dispute sparking uninformed rants in the online community. If you do want to weigh in, I suggest looking over the documentation, all of which is available to the public. At the least, it's an interesting discussion and will bring more attention to trademarking in the bartending world, of which most people are probably unaware.

Science of Taste: Savory and Bitter

Welcome to the third part of the mini-series on taste science.
Please take a look at the introduction and a discussion of sweet, 

and the discussion of sour and salty. 

Next we'll take a little look at savory and, my favourite (along with many other drinkers, I'm sure), bitter.

Savory/Umami
This flavour is perceived mostly through the glutamic acid found in monosodium glutamate (MSG), and while not traditionally found in cocktails, is starting to make more appearances due to creative mixology. The only old drinks that come to mind are the Bloody Mary and the Caesar in their flavouring salts, but nowadays people are making bacon-infused bourbon, or duck fat-infused bourbon (see: the crazy boys at The Refinery), and so on.

Increasing savory will
- Increase the sweet
- Increase the salty
- Decrease the sour
- Decrease the bitter.

So, for the creative mixologist here, if you have a heavy amount of citrus and bitter in your drink, using a meat or fat-infused spirit might be an outlandish way to balance things out. Similarly, if you start with such an infusion, you need to be careful when adding sugar to the mix.

Finally,


Bitter
The majority of the receptors on your tongue are extremely sensitive to bitter, which from a biological standpoint is likely protection against natural poisons. The most interesting aspect of bitter that Darcy revealed to us is that there is no range to its flavour. All other flavours can have differences, aspects, and so on, but bitter is literally an on/off switch on your tongue. Bitter tastes the same to the tongue regardless of what it is or where it comes from. There is a chemical, an "anti-bitter," that Darcy showed us called adenosine monophosphate that inhibits the bitter receptors (this is approved by the FDA which means it can therefore be used legally in mixology). This opens an interesting door, because it means you could put one drop of this on your tongue then do a shot of Angostura and only get the spice. For real. (We actually did end up putting some on our tongues, it was crazy).
This is often a challenge in mixing drinks - how do you reduce bitterness? This is especially true considering that most people perceive alcohol as bitter. There are several ways:

- Decrease the alcohol-level (proof)
- Decrease the sourness
- Increase the sweetness
- Increase the viscosity
- Increase the fat
- Increase the saltiness
- Increase the umami/savory

Notice the "increase the sweetness." Yes, this is where all the trouble began. I still remember a friend saying to me once that the key to being a good bartender is mixing ingredients so you can't taste the alcohol at all, which still makes me cringe. Obviously this friend is used to the way most drinks have been made for the last 40 years or so - with tons of sugar. The point of this whole series is to look at different ways to balance other than using sugar. If your drink is on the bitter side due to say, a high proof whiskey and a couple extra dashes of aromatic bitters, don't just add simple syrup - try throwing an egg white in the mix, or adding some soda. If it's a sour, consider backing off the juice a bit, or switching to lemon or grapefruit instead of using lime. (The "increase the fat" part here is more for food taste purposes, unless we again visit the duck-fat-infused bourbon that Joel has at The Refinery).

Bitter is the ultimate acquired taste. You literally have to combat biology and train your tongue and body to withstand it so you can enjoy the other flavours involved. Once you do, though, you'll be opening up your palate to so many new and exciting things, and trust me - you won't be able to stop. I constantly crave bitter and smokey flavours nowadays. Once this part of your tongue calms down, you'll get more Christmas-spice from Angostura, more chocolate and coffee from amaro, soft chamomile from Bittermens Boston Bittahs, and so on. You'll also appreciate balance more in what you eat and drink, and probably get ripped, have many lovers, make tons more money, and own a jetpack. I have no conclusive evidence on some of those, but it's worth a shot, right?

Just keep your mind and palate open and ease yourself in via some softer amari and a well-made Old-Fashioned with a new kind of bitters.
I will return on the weekend with a post on the non-tongue-related factors in how we perceive taste, and how you can apply these as a bartender.
Thanks again to Darcy O'Neil for his inspiration and information.


Also check out this post on Personality & Genetics
and this one on other non-tongue factors

[[ Second photo from frontpsych.com ]]

The 6th thing you need to start mixing drinks at home

BOOZE

Ok, so you picked up some cheap glassware, a shaker, some citrus fruits, some sort of measuring tool, and you made your simple syrup (you learned all this from Part 1). All you need is some alcohol to mix.
Here are the most basic and cheapest things to pick up so you can start making some drinks...

A Base Spirit
The cocktail "base" is the alcohol you're using most in a drink. Everything else you're adding to accentuate certain flavours in this spirit. Probably the most commonly used spirit in cocktails, especially traditional ones, is gin, so that's definitely the first thing you should pick up. I have a beginner's guide to gin Part 1 and Part 2 coming soon, but for now I'll simply tell you to go buy Tanqueray or Beefeaters. They're both cheap ($23-26 for a 750mL bottle) and versatile. Tanqueray is more interesting and more herbal, Beefeater is much simpler and a little citrusy.

The next most common and classic base spirit is probably whiskey. A lot of drinking novices cringe a little when you say whiskey, but there are not only some really tasty and easy-to-drink ones for cheap, there are also a lot of easy cocktails you'll probably like even if you don't like whiskey itself. My lady is a great example - we used to go out for drinks and she'd make faces when I'd order whiskey cocktails and even made faces after trying some of them. Then she tried a Red Hook... then a Bensonhurst... then a Manhattan and a Brooklyn and so on and so forth and now she loves whiskey.
If you're new to whiskey, I suggest getting bourbon. It's sweeter with a little spice, mixes really well, and is very sippable if you're not used to rye or scotch. Get a bottle of Jim Beam or Wild Turkey - they're the cheapest at $23-26 per 750mL bottle, but they're definitely fine in cocktails and easy to use. They're not great sippers, though, so I'd just use them for mixing.
Don't buy Canadian Whiskey. It sucks and it's boring (sure that's a generalization - but a pretty accurate one).

I would go with one of the above to start, but if you're past that or have a bunch of money to spend and want more, move on to rum or brandy. For rum, pick up Mount Gay Eclipse gold or silver rum. They're only $27 for 750mL bottle, they're delicious, they mix really well, and they're tasty enough to drink straight. I'm much, much less knowledgeable about brandy, and I honestly buy cheap, small bottles because I rarely make drinks with it and I never drink it straight. Couvoisier VS is a very decent one, but will cost you $56 for 750mL bottle (I'm finding any good brandies or Cognacs are very expensive). I just usually get St. Remy VSOP, which is only $12 for a small bottle, and I only really use it for mixing a couple drinks. There is a very dramatic taste difference between a cheap brandy like this and a decent Cognac, as I'm sure you would imagine, but if you're just mixing some new drinks, it's not necessary YET. (Soon I'm going to do a guide on brandy to build my own knowledge and guide collection)

A Vermouth
A long list of cocktails contain vermouth - a fortified wine with added herb botanicals - including a lot of the classics. You'll definitely need bottles around, one white (or dry or French - all the same thing), and one red (or sweet or Italian - all the same thing). I personally really dislike Martini & Rossi, but it is the cheapest way to go, and they're the only brand in Canada that offers small bottles for only $8 - which is great because vermouth will always go bad before you finish using it. If you want to go a little nicer, Noilly Prat dry vermouth is only $14, and Cinzano Rosso sweet vermouth is only $13. If you only want to buy one... look at some cocktail recipes you want and just choose. Sweet vermouth is used more often with whiskey, and dry more often with gin.
Keep your vermouth in the fridge!! You can only keep it for a month before it starts to smell and taste funky, so be prepared for that. 

Bitters
The actual definition of a "cocktail" is a base spirit, water, bitters, and sugar. A lot of traditional cocktails will call for bitters, and there are a lot being produced nowadays that really change the complexity of a cocktail.
Unfortunately in Canada, the only bitters that's easy to find it Angostura, and our government liquor stores don't sell any at all. Fortunately, you can just pick it up in Safeway for $7-8, and one of those bottles lasts me about 6 months.
If you want to experiment in the future with other kinds, The Bitter Truth will ship to you, and they make a whole range of really interesting bitters, from chocolate to grapefruit to celery to traditional-style Creole bitters. Out of a store, the Gourmet Warehouse on Hastings near Commercial has some cool syrups and a huge range of bitters, and I also hear that there is a liquor store somewhere near 16th Street in North Vancouver that sells a lot of hard to find stuff... but the store itself is hard to find. I still can't find a listing for it, nor have I learned the name, but I've had more than one bartender tell me that this magical place exists. When I find out, I'll let you know.
So hit up the Gourmet Warehouse if you want to try some new or interesting things, but to start, you only really need Angostura and an orange bitters.

Modifiers
Now, this is really up to you. A modifier is that special other ingredient that makes a drink different. Like I said, a cocktail is just bitters, sugar, and a spirit with water, but the evolution of drinking has brought in many other things. I can't tell you what to get unless you know what you want to make!

If you're past the point of basics, though, I can recommend a few things that really spiced up my bar early on:
Amari - Italian bitter liqueurs which are meant to be drunk straight, but there are lots of drinks you can make with them. Lots of bars are experimenting with amari nowadays, and they're all really delicious. Only a few are easy to find though, and Campari is a great way to start. It runs $26 for a 750mL bottle, and you only use small amounts so it will last a long time. It has a distinctive bright red colour, an interesting range of bitter herbal flavours, and is an important ingredient in some great, classic cocktails like the Lucien Gaudin, The Negroni, and The Americano. (The latter post there has some extra information on Campari as well).

Cointreau (which is the high-end triple sec, or orange liqueur) has a lot of uses, and you can pick up a small bottle for $18.

Green Chartreuse is a very, very cool thing to have around. It's an herbal liqueur from the 18th century made with over 130 different plants and herbs. One of my favourite drinks is The Last Word, which calls for Chartreuse, but there are actually quite a few other things you can make with it. It is expensive at $36 for a small bottle, so is a treat, but is so potent that you won't use a lot of it. And it's naturally green! In fact, the colour Chartreuse was named after it.

Last thing I definitely recommend getting at some point if you want to expand your horizons is Maraschino Liqueur. No, it's not a red, cherry-flavoured, sugar syrup. It's a very interestingly flavoured liqueur dating back to 16th century Croatia, and is used in a lot of very old cocktails, including the father of the Martini - the Martinez. You can't get this in the regular BC Liquor Store, but a lot of independent places have it, like Brewery Creek on Main Street, or the independent liquor store in the Park Royal South Village in West Vancouver.

I hope all this helps in getting you going and giving you some options as to where you'll start. I've had so much fun experimenting and mixing drinks and getting connected to periods of history I really enjoy, particularly Prohibition, which is when so much good art and music and style was happening. Be open-minded, use good ingredients when you can, always have ice handy, follow recipes closely, and be adventurous!
I also have to take a moment to plug the Pourhouse. It's my favourite bar in Vancouver, with probably the best bartenders in Vancouver, and they really insist upon giving you a good experience, good information, and classic cocktails. It's in gastown. If you're not really into this yet, one trip there will get you excited.