King Has 'Crush' Trademark Opposed By Dr. Pepper

from the by-their-own-petard dept

App-maker King, of Candy Crush fame, has built up a reputation for itself as a trademark bully. The company has previously attempted to threaten pretty much any game or mobile app that utilizes the words "candy" or "saga." And if that sounds insane to you, you're not alone, as there have been several instances of severe backlash against how King goes about "protecting" its trademarks.

As this site's version of the saying goes: live by the intellectual property, die by the intellectual property. Well, not die, perhaps, but it's slightly amusing to watch King have its "Crush" trademark opposed by Dr. Pepper.

In a bid to create a further layer of protection for their games, King.com have filed an application to protect ‘Crush’ as a trade mark in the US for confectionery. Unhappy about this application, Dr Pepper have filed an opposition claiming the ‘Crush’ trade mark will damage the goodwill of their own ‘Crush’ marks.

Dr Pepper owns several trade marks for the word for a number of items including certain confectionary items and cosmetics. Dr Pepper has based their claims on the fact they believe by allowing the application by King.com, it will cause dilution of the distinctive quality of Dr Peppers marks.

Ok, let's get the obvious out of the way: this is a fairly silly opposition if its basis is to do with customer confusion. Frankly, I can't imagine how many people are even aware that the Crush mark is being used in the confections space by Dr. Pepper. I certainly can't think of a single Crush-branded candy. My quick google search didn't turn up much either. Crush is known for its soft drinks. Meanwhile, King is known for its apps, and even if it makes the move into retail in the way that Angry Birds has, and that retail business includes candies, who is going to confuse any of that with Dr. Pepper's Crush brand?

That being said, this opposition is certainly more valid than King's bullying of the makers of The Banner Saga over that last word. I won't say this has reached the level of schadenfreude for me, but it is somewhat hard to get any tears to build up over King having to endure a silly opposition to its trademark.

Filed Under: candy crush, crush, trademark
Companies: dr. pepper, king

Concussion Protocol: Can You Tell The Difference Between Soda And One Half Of A Football Team?

from the crushing-it dept

There are a surprising number of really dumb trademark disputes involving professional sports, what with athletes jumping at the chance to trademark their nicknames and phrases, and that really dumb 12th Man thing. But even this cynical writer was taken aback at the news that Dr. Pepper had stepped in to block the Denver Broncos from trademarking the term "Orange Crush", the nickname for the team's defensive squad spanning nearly half a century.

An online record shows that the Broncos filed paperwork to trademark the phrase "Orange Crush" in September 2015 through the NFL's chief litigation officer, Anastasia Danias. Last week, lawyers for the beverage makers filed an opposition to the attempt.

If neither the Broncos nor the NFL abandon their filing, the case will be heard before judges on the Trademark Trial and Appeal Board, which will make a call as to whether the team should be allowed to register the mark.

This again leads me to wonder whether all the words we've expended here at Techdirt discussing the particulars of trademark law have been for naught. One of the basic concepts of trademark law is that marks are typically applied narrowly, usually by industry. So, for instance, if Dr. Pepper were to notice another company using the term "Orange Crush" to sell beverages, it would have absolutely every right to stop that. But all the categories for which the Broncos propose to use the term revolve around its use at sporting events and merchandise related to those sporting events. The Broncos are not, by all accounts, planning to make soda. The Denver defense has been using that nickname, however, going back to the 1970s. Given that the two industries are fairly distinct, the court should have an easy time determining whether there will be any customer confusion to consider.

We here at Techdirt have a suggestion. While the typical test for whether confusion will occur is the infamous "moron in a hurry" test, which asks if idiots on the go would be confused by the use of a trademark in commerce, the inclusion of an NFL team in this dispute opens the door to a slightly altered version of this test. We suggest that the court gather up current and ex-NFL players who have been thoroughly concussed at least twice, present them a can of Orange Crush soda along side the entirety of the Denver Broncos defensive squad, tell them to run the 100 yard dash, do a touchdown dance, and then ask them if they are confused. Because even they won't have a hard time telling the difference between soda and a 3-4 defense.

I'll also note for the record that Dr. Pepper's Orange Crush product has managed to survive Orange Crush hot sauce (Trademark 86317242) as well as Orange Crush tobacco (Trademark 77680931), both of which are arguably in more similar industries than an NFL team -- and both of which were allowed to register their trademarks. Regardless, I would expect Dr. Pepper's opposition to fizz out, as it were.

Filed Under: football, orange crush, soda, trademark
Companies: denver broncos, dr. pepper

Guns N' Roses' Lawyer Says Dr. Pepper Giveaway Was Fraud... Even Though Axl Rose Liked It

from the you're-a-pepper-too dept

Ben S. writes in to let us know that the lawyer for Guns N' Roses is now accusing Dr. Pepper of fraud for its well publicized give-away of free bottles of the soft drink along with the release of GNR's Chinese Democracy album. As you're probably aware, the album has been delayed for years, and a Dr. Pepper exec announced earlier this year that if the album actually came out in 2008, the company would give free Dr. Pepper to everyone. The complaint from GNR's lawyer seems to pick up on two points -- which somewhat contradict each other. First, he's upset about the giveaway in that it suggests some sort of endorsement by the band of Dr. Pepper. In some ways, this is similar to the recent dispute between 50 Cent and Taco Bell. Like that case, it's difficult to see the damage done here, as there's no explicit endorsement. However, the second part of the "fraud" complaint seems to be that, given that the promotion went forward, GNR is upset that Dr. Pepper screwed it up. There were apparently problems with the Dr. Pepper website on the day of the promotion, meaning that many people who expected to get a coupon for a free Dr. Pepper might not have gotten one.

The fear, then, is that since Dr. Pepper executed poorly on the giveaway (and people might think that the band was behind the promotion), consumers would be pissed off at the band about not receiving a free Dr. Pepper. I can sort of see the logic, though it's difficult to believe that a GNR fan is suddenly going to hate the band because they didn't get a free can of Dr. Pepper. Also, the claim about GNR being upset about Dr. Pepper's use of GNR in its promotion is undermined by the fact that Axl Rose seemed quite happy by the promotion when it was first announced, writing on the band's site at the time:

"We are surprised and very happy to have the support of Dr. Pepper with our album Chinese Democracy as for us this came totally out of the blue. If there is any involvement with this promotion by our record company or others we are unaware of such at this time. And as some of Buckethead's performances are on our album I'll share my Dr. Pepper with him."

To later claim to be upset that this promotion somehow was a "commercial exploitation" of the bands' rights, seems undermined by that statement.

Filed Under: dr. pepper, guns n' roses, promotion
Companies: dr. pepper