Soda shops where you can order a “dirty” Diet Coke have become quite the rage in Utah as of late. Drinking a “dirty” soda may sound unappealing to the uninformed, but all “dirty” means in the soda context is the addition of flavored syrup shots (typically coconut and sometime also lime). As custom soda shops grow in popularity, one shop claims it coined the term “dirty” and with a federal trademark registration in hand, wants the other shops to stop using it.
The Utah soda flavor craze allegedly traces its roots back to St. George, Utah, where a soda shop called Swig began selling flavor shot enhanced sodas. When Swig opened for business in 2010, it quickly became a hit. Its “dirty” flavors, brightly colored straws and pebbled ice resonated with customers. In 2013, Swig looked to protect its signature brand by filing a trademark application on “dirty” in the class of “concentrates and syrups for making soft drinks.” The trademark registered in 2014.
As the business took off, others took notice. Similar soda shops began springing up in northern Utah. One in particular, Sodalicious, had (allegedly) a very familiar feel and used “dirty” to describe flavor enhancements for its drinks. It also allegedly used brightly colored straws and menu boards very reminiscent of Swig’s. This (alleged) imitation was quickly detected by Swig.
Swig’s CEO said that he tried for several months to get Sodalicious to stop using the term “dirty” to describe its drinks, stating that if Sodalicious stopped using the term, Swig would not take any further action. Apparently, Sodalicious wasn’t interested in making any changes and continued to use the term. This forced Swig to further escalate the matter.
Swig filed a lawsuit against Sodalicious alleging that Sodalicious infringed its trademark registration on “dirty” and also infringed on its trade dress, claiming that the look of Sodalcious’ shop is nearly identical to Swig’s shops, even down to the brightly colored straws and cups with bubbles on them. The look and feel of a product can be protected through trade dress, so long as the look is not a functional element of a product. If there is a likelihood of consumer confusion between the aesthetic elements of two products or services, trade dress infringement can be found. Swig believes that Sodalicous is in violation of both its trade dress and trademark protection.
This case of success breeding imitation is all too common. Copycat companies abound in most industries, particularly those with a low cost for entering the market. While it is not illegal to copy a successful business model, elements of a brand, like logos, signature names, and product design can be protected via trademark and trade dress. The lawsuit is in its early stages and could potentially settle before ever going to trial. But if you are a fan of the “dirty” soda, you will want to keep abreast of this fight.
Article written by DA Johnson. Connect with DA on Google+