Ocean Spray Seeks Declaratory Relief After Soda Company Threatens It With Confused Trademark C&D

from the hang-ten dept

While we've seen plenty of instances of confused attempts at trademark bullying backfire on a company, this post will deal with one of the worst I've seen. Most of you will likely be familiar with the company Ocean Spray, best known as a purveyor of all kinds of cranberry-infused fruit drinks. You will likely be less familiar with Wedge Water, LLC, a company that makes fruit juice infused water products. The company also does business as Wave Soda, promoting its soda-alternative drinks.  

Well, according to a lawsuit filed by Ocean Spray seeking declaratory relief that it did not infringe any trademarks with its own "wave" branding, Wedge Water / Wave Soda sent a cease and desist notice to Ocean Spray demanding that it cease using its own federally registered trademark. More on that in a moment, but here is what the complaint notes about the C&D.

The Letter accuses Ocean Spray of infringing “Wave Soda’s” trademark and trade dress rights through Ocean Spray’s line of OCEAN SPRAY WAVE products. According to the USPTO database, there is no registration for the mark NEW WAVE owned by an entity named Wave Soda, LLC. As noted above, according to the USPTO database, Wedge Water, LLC is the owner of record of U.S. Registration No. 5571632 for mark NEW WAVE.

The Letter advises that Wave Soda, LLC, is a “rapidly growing beverage company based in San Marcos, California.” A search of the database of the California Secretary of State, however, reveals no record for an LLC named Wave Soda, LLC in San Marcos, California, or at all. Despite the fact that there are many brands of sparking water with fruit juice and a small amount of caffeine for sale on Amazon, Mr. Levine’s letter claims that his client “pioneered an entirely new product category.”

The Letter emphasizes that the surfer motif is an important part of Wave Soda’s branding: “Wave’s growing team shares [the founder’s] passion for beverages and an active lifestyle—the Wave Soda Surfboard and VW van are not just for show” (emphasis added).

It goes on from there. The complaint, which includes the C&D letter in full, notes that the notice didn't offer any specifics as to what was infringing, offered no possibility of a settlement other than the cessation of Ocean Spray using its own mark, and that the letter in general is "utterly confusing as to who owns the trademarks and trade dress claimed in The Letter." All of this, the complaint goes on, has led the company to seek declaratory relief.

Frankly, the C&D is fairly shitty as far as these things go. But the actual legal claims, based on the suit, seem to be even more confused. This dispute led Ocean Spray's legal team to start looking into the trademarks claimed by Wedge Water. The complaint notes that Wedge Water applied for a mark for "New Wave" on a variety of goods, but the "intent to use" application failed to demonstrate that the applied for marks were actually in use in commerce. Instead, Wedge Water's attorneys appear to have supplied some art renderings of what the branding would be. In other words, Wedge Water wasn't actually using the marks in question before July of 2018. The filing notes that Ocean Spray was using its federally registered "Wave" trademark since at least 2013.

Plaintiff Ocean Spray requests an order declaring that its use of the marks WAVE as part of the mark OCEAN SPRAY WAVE, and the OCEAN SPRAY WAVE trade dress do not infringe Wedge Water’s alleged trademark and trade dress rights. With respect to the word marks WAVE as part of the mark OCEAN SPRAY WAVE and OCEAN SPRAY WAVE, Ocean Spray asserts priority over Wedge Water. Even if the marks are confusingly similar, (which Ocean Spray does not concede), Ocean Spray has prior rights and is not infringing any claimed rights of Wedge Water.

And because of that priority, and likely because of Wedge Water's attempt to play trademark bully, the lawsuit includes a second count beyond the declaratory relief, seeking also to cancel Wedge Water's trademark in favor of Ocean Spray's.

Ocean Spray has standing to request cancellation of the NEW WAVE Registration because it has reason to believe that it will be injured by the continued registration of same. Ocean Spray has reason to believe that it will be injured because Defendant/Registrant or its alter ego, the purported Wave Soda, LLC, has asserted in The Letter that Ocean Spray’s use of its OCEAN SPRAY WAVE trademark infringes the NEW WAVE mark. The Letter asserts, and thus admits, that there is a likelihood of confusion between OCEAN SPRAY WAVE and NEW WAVE.

Whoops. What retort could Wedge Water possibly have? Its own C&D letter suggested that there would be public confusion between the marks...and the trademark registrations sure do indicate that Ocean Spray's mark was registered first.

Live by the trademark, die by the trademark and all of that. You have to imagine at this point that Wedge Water is regretting having ever sent that threat letter to begin with.

Filed Under: declaratory relief, soda, trademark, wave
Companies: ocean spray, wave soda, wedge water

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

DailyDirt: Sugar, Yes, Please...

from the urls-we-dig-up dept

The number of calories you can ingest as soda or juice can be surprisingly high, if you're not accustomed to accounting for your caloric intake. There's a reason why so many diet soft drinks exist -- and why a few low-cal beers are on the market. Drinking fewer calories just seems like an easier path to consuming fewer calories.

• Should you rely on artificial sweeteners instead of sugar to get your sweetness fix? Obviously, artificial sweeteners aren't "natural" (well, except for Stevia or tagatose), but that doesn't necessarily mean they're bad for your health. Added sugar in your diet correlates with some health problems, but so far, serious health issues aren't so strongly associated with artificial sweeteners. [url]
• Aspartame acquired a bad reputation for causing cancer in rats, but actual health problems for humans haven't been demonstrated. Unless you're one of the rare individuals with phenylketonuria, there's little scientific evidence that you should be concerned about consuming a reasonable amount of aspartame. But if you're worried about your gut bacteria, the scientific jury is still out on the long-term effects from altering a person's microbiome. [url]
• Coca-Cola is moving away from sugary drinks with lower calorie products that replace sugar with sweeteners like Stevia. Stevia-sweetened Coke hasn't caught on (yet?), but it's the more "natural" successor to Diet Coke. [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: artificial sweeteners, aspartame, diet, food, health, microbiome, phenylketonuria, soda, stevia, sugar, tagatose
Companies: coca-cola

Big Red Soda Sues Big Ben Soda Over Big Trademark Dispute

from the big-deal dept

It's quite easy to get caught up in some trademark disputes where the trademarks are of a short nature and the industries are such that there are only so many ways to present a product. In those situations, it's too simple to point at two brands and claim they are similar, therefore, boom, trademark infringement. Instead, a little context matters. Let me show you what I mean using one recent example.

Two soda makers, Big Red and Catawissa Bottling Company, are currently at odds over the latter's Big Ben's Soda brand.

Big Red, the Austin-based maker of bottled red soda, is suing a small Pennsylvania soda maker, Catawissa Bottling Company, alleging that its Big Ben Cream Soda – also red in color – infringes upon its trademark, reports the Dallas Morning News.

According to court documents, Big Red attorneys say Catawissa's soda "is currently packaged in the same manner as Big Red soda: a clear bottle bearing a water droplet and the 'Big Ben' words" which are themselves substantially similar to the 'Big Red' words," and that the typeface and graphics on the bottles of the two sodas are too similar.

Again, you can see where a little context is important here. Both companies are making bottled soda. For that reason, we can pretty much just throw the part about both being sold in a clear bottle out, because, duh, there's nothing unique in the industry there. It's the other claims that are important. The least important of them is the "Big Ben" brand name, because "Big" is the only similarity, "Big" is a super-common word that isn't unique, while "Ben's" and "Red" have nothing to do with each other. The name of the "Big Ben's" brand is only relevant if the other claims Big Red makes are true: if the packaging graphics are similar, if the type-font of the words is similar, and if there is likely to be customer confusion resulting from either.

Judge for yourself how valid Big Red's claims are.

How similar is the packaging and font to you? If you answered that they don't look similar at all, then ding, ding, ding, you're correct! There seems to be little chance of customer confusion over the two brands at all, honestly. The only Big Red's dispute that might make some kind of sense would be if it thought that Catawissa had seen Big Red's popularity and tried to come up with a brand, any brand, that appeared just similar enough to try and make customers think it was a cheap knock-off. There would be a problem with that theory, however.

It should be noted that Catawissa has been making Big Ben-brand soda since 1926. Big Red's trademark dates back to 1957, and was the result of a consumer nickname that stuck.

It's a product almost a century old, in other words. Oops. Big Red, I'll note for you, is partially owned by the same company that makes Dr. Pepper and Snapple, so I'm sure there's some access to a bit of legal firepower on their end. It'd just be nice if all that firepower was reserved for actual infringement cases.

Filed Under: big ben, big red, soda, trademark
Companies: big red, catawissa bottling company

DailyDirt: Changing Your DNA In 2015

from the urls-we-dig-up dept

Your fate is not completely written in your DNA. Environmental conditions can certainly change your life significantly, and you can even control some risk factors to your benefit. Sure, some things like poverty aren't quite under anyone's direct control (and it has a measurable detrimental effect on kids' DNA). But if you're looking for some more good reasons to make a new year's resolution, maybe think about how you can change your epigenetics for the better?

• Exercise apparently changes how genes are expressed. The field of epigenetics isn't well understood yet, but there are a lot of factors that can change how our genes send signals to our bodies. By studying people riding a stationary bicycle using only one leg, researchers could find evidence of genetic differences in the muscles of legs that exercised and that did not. [url]
• CTRA or "conserved transcriptional response to adversity" looks at how stress affects gene expression in our bodies, and there are some correlations that suggest detectable health effects come from charitable actions. Presumably, activities that lower stress (such as volunteering, etc) have some effect on your well being that are different from actions that are merely self gratifying. [url]
• Drinking soda every day probably isn't great for your long term health. Correlation is not causation, but people who drink sugary sodas daily have shorter telomeres in their white blood cells. That doesn't mean if you stop drinking soda that these bits of DNA will grow back, though. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: aging, conserved transcriptional response to adversity, ctra, dna, epigenetics, exercise, gene expression, health, resolutions, soda, stress, telomeres

DailyDirt: Uncommon Un-Colas

from the urls-we-dig-up dept

A vast number of soft drinks are available, and some of the most popular ones seem to have started as medicinal tonics (even the ones that aren't called "energy drinks" nowadays). Coca-cola was once a headache medicine that contained an unhealthy amount of cocaine -- that wasn't completely removed until 1929. Here are just a few other strange sodas with some unusual natural ingredients.

• Pepsi is launching a new soda sweetened with stevia (and sugar), but it's only going to be available online at Amazon. Pepsi True is not shipping yet, but there are already a few reviews from people who haven't tasted it. [url]
• Dr. Brown's Cel-Ray soda has been around since 1868, and it may be the only celery-flavored soda that is mass-produced commercially. Celery was once considered a superfood with medicinal powers, so they made a tonic from it, and that story is nearly the same for several other popular soft drinks with supposedly healthy ingredients. [url]
• The Un-Cola 7 Up was also known as 'Bib-Label Lithiated Lemon-Lime Soda' when it debuted in 1929. The original formula also contained lithium which, at high doses, is prescribed to treat bi-polar disorder. Lithium citrate was removed from 7 Up by the 1950s, but the drink still contains only "100% natural" flavors. (Note: drinking water may contain trace amounts of lithium, too.) [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: 7up, cel-ray, cocaine, drinks, food, lithium, natural ingredients, pop, soda, stevia, sugar, tonic
Companies: 7up, coca-cola, pepsi

DailyDirt: Healthier Sodas Still Aren't That Healthy

from the urls-we-dig-up dept

It's not easy to introduce a new soda (or pop or whatever you like to call carbonated soft drinks). Just try to find a bottle of New Coke, Crystal Pepsi, OK Soda or 7Up Gold -- and those are just the discontinued sodas that had some significant marketing campaigns behind them. The successful introduction of diet sodas has evolved into a trend toward "healthier" sodas with vitamins, minerals, antioxidants, real sugar, no BVO, herbal supplements and all sorts of other ingredients that might provide some kind of health benefit. However, some of these healthy sodas are dying off because consumers don't seem to want sodas that sound too good for you. Here are just a few examples of healthier sodas you might want to try.

• Pepsi Special is a diet soda that contains dextrin -- an indigestible fiber that can make a person feel full and reduce the body's ability to absorb fat from foods. This beverage has recently been approved for sale in Japan, but it's not the only soft drink with dextrin on the Japanese market. (NB: drinking a lot of indigestible fiber might keep you in the bathroom for a bit longer than usual...) [url]
• A few years ago, Coke and Pepsi both introduced "healthy" sodas (Diet Coke Plus and Tava, respectively). These carbonated beverages were fortified with vitamins and minerals, but they didn't quite catch on. [url]
• Coke and Pepsi weren't the first to try adding vitamins and minerals to soda -- in 2004, 7Up Plus hit the shelves a few years before Diet Coke Plus and Tava. 7Up with antioxidants also ran into some problems, and a lawsuit from the Center for Science in the Public Interest made the Dr. Pepper Snapple Group agree to stop adding vitamin E to drinks and claiming to have antioxidant health benefits. [url]

Filed Under: 7up, 7up plus, antioxidants, dextrin, diet coke plus, diet soda, drink, fiber, food, health, minerals, new coke, pepsi special, pop, soda, tava, vitamins
Companies: coca cola, dr pepper snapple group, pepsi

DailyDirt: DIY Soda (Pop Or Whatever You Call Carbonated Beverages)

from the urls-we-dig-up dept

Making your own carbonated soft drinks has a few benefits -- from knowing where all the ingredients came from (eg. no brominated vegetable oil) to getting the satisfaction of creating your own custom flavoring. It's not quite as simple as punching a button on a vending machine, but it's not exactly rocket science, either. Here are just a few links on being your own soda jerk.

• Sodastream has been around since 1903, but it went public on the Nasdaq in 2010 and started expanding its DIY soda making system to take on the big soft drink makers. But marketing itself as an alternative isn't always easy, and it had to change its 2013 SuperBowl commercial to remove Coke and Pepsi logos. [url]
• The secret recipe for a can of Coca-Cola isn't just getting the mixture of caramel coloring and phosphoric acid right; there are also a zillion other details from packaging and distribution that have been optimized. The top of the aluminum can is actually a different aluminum-magnesium alloy from the rest of the can, engineered so it can have a pop-top and still withstand the pressurized contents. [url]
• When making your own soda, be sure to use 100% essential food oils that are rated food grade. Recipes to make Open Cola and the "original" Coke are available, but there's a bit of set up involved. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: beverage, flavoring, food, open cola, pop, recipes, soda, soft drinks
Companies: coca-cola, pepsi, sodastream

DailyDirt: Breakfast of Champions...

from the urls-we-dig-up dept

Breakfast is supposedly the more important meal of the day. But does it matter what you eat for breakfast? There are plenty of incredibly unhealthy-sounding breakfast menus, but people are always coming up with even more outrageous breakfast items. Here are just a few examples of how kids can start their day.

• PepsiCo has a breakfast soda called Kickstart -- a Mountain Dew-flavored beverage with caffeine and some fruit juice and added vitamins. Are you a backer for 92 milligrams of caffeine in a 16oz can? [url]
• All kinds of deep fried foods can be found at county fairs, and deep fried breakfast cereals are no exception. Last year, the San Diego County Fair offered several kinds of breakfast cereals in a hot, crispy slightly chewy and delicious form (if you like fried stuff, and who doesn't). [url]
• If there's an important state-wide standardized test, students should eat a good breakfast before they take it -- and they can get a free meal from McDonald's for taking the FCAT (in Florida) in 3rd to 11th grade. And if anyone can correlate higher test scores with the students who ate at McDonald's.... [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: breakfast, caffeine, cereal, fcat, food, fried, kickstart, mountain dew, soda
Companies: mcdonald's, pepsi

CBS Bans Commercial That Disparages Coke & Pepsi, But Lets Them Disparage Each Other

from the no-disruption-allowed dept

Oh, the benefits of incumbency.

Sodastream is a cool new company that allows consumers to make their own carbonated beverages at home.  Given its popularity, largely due to its ease of use, SodaStream’s stock has been on a run the last few months.  It also possesses the potential to disrupt to established beverage companies like Pepsi and Coke.

Not surprisingly, SodaStream would like to advertise this fact.  In fact, it is so keen on advertising the relative benefits of its product over the more traditional route of buying pre-made soda from the store that the company ponied up for a Super Bowl commercial.  Unfortunately for SodaStream, the ad was rejected by CBS, not because it was too risque, but because it “disparages” other major advertisers (which is apparently more objectionable than borderline softcore porn a la GoDaddy and Mercedes).  As Ad Age reported:

The content of its planned commercial seemed to have concerned CBS because it was a direct hit at two other Super Bowl sponsors and heavy network TV advertisers: Coke and Pepsi.

We’ve discussed elsewhere CBS’s newfound affinity for the ban hammer, but this isn’t even the first time this has happened to SodaStream.  British regulatory authorities yanked Sodastream’s first major advertising campaign for “being too disparaging towards soda manufacturers like Coke and Pepsi.”

How disparaging was SodaStream that its ads were pulled from television?  Well, it simply pointed out that SodaStream was more environmentally friendly than drinking off-the-shelf sodas because, with SodaStream, “you could save more than 2,000 bottles a year.”  Wow, that is incendiary.  Not safe for public consumption!

It gets better.  Clearcast, the NGO — funded by the British broadcasters — that pre-approves most advertisements for British television, reportedly offered this rationale for pulling the ad:

The majority decided that the ad could be seen to tell people not to go to supermarkets and buy soft drinks, [and] instead help to save the environment by buying a SodaStream. [SodaStream] was also told that it constituted denigration of the bottled-drinks market.

Hypocritically, U.S. broadcasters have allowed Pepsi to air Super Bowl ads that bashed Coke directly, as Ad Age also pointed out:

Interestingly enough, Pepsi has scored big points with viewers over the years by showing Super Bowl ads with Coke deliverymen abandoning their employer wholesale for a sip of a Pepsi drink.

Moral of this story:  Pepsi and Coke can attack each other over trivial differences in their products, but don’t attack the business model of big incumbent advertisers.

Fortunately, there is an upside for SodaStream.  All the controversy that these ads have stirred has generated a buzz around them.  The SodaStream “banned Super Bowl ad” has already generated more than two million hits on YouTube in two days and generated a media buzz around the company itself.  And that’s without having to splash $3.8 million worth of cash for a Super Bowl commercial.  Another example of the Streisand Effect in action.

[SodaStream is running a commercial during the Super Bowl, but it was forced to replace Coke and Pepsi with fictional soda companies.  However, that ad only has a little more than 17,000 YouTube views in the last two days.]

Cross posted from Project-Disco.

Filed Under: ads, commercials, competition, disruption, soda, super bowl, superbowl
Companies: cbs, coke, pepsi, sodastream