The Great Dirty Soda War In Utah Is Trademark Gone Stupid

On matters of trademark, a law I hate much less than other forms of intellectual property, I tend to think of its administration as needing to be built on a basis of trust. The purpose of trademarks are chiefly to benefit the public, in that they are designed to keep the consumer from being fooled into thinking one brand is another. With that in mind, the USPTO has the power to grant exclusivity to certain brand identifiers in order to help the public consumer identify brands and companies. For this arrangement to work, the USPTO must be trusted not to screw it all up by granting marks on common terms or by limiting customer options by being too exclusive and stifling business.

The damage done when the USPTO fails at this can be seen easily, but perhaps no better example exists than what's going on in Utah at the moment, where several soda shops are engaged in a battle over the word "dirty." The New York Times calls it the Soda War of 2015 and it's primarily being waged by two businesses, Sodalicious and Swig. Because of Utah's Mormon population, which tends to eschew alcohol and coffee, but will readily imbibe sugar, shops selling so-called "dirty-soda" are becoming quite popular. Dirty-soda is a term for cocktails of common soda products along with taste enhancers, such as syrup or other ingredients. Anyone who has ever ordered a dirty martini will be familiar with the term and its common use in making cocktails. But for some reason the USPTO granted a trademark to one of the businesses on the use of the term "dirty" for their drinks and you already know what happens because of it.

As the shops have proliferated, a fight has broken out between Sodalicious and Swig, two of the larger chains, over the use of the word “dirty.” Nicole and Todd Tanner, who started Swig in 2010, say they own the right to use the word to refer to flavor-infused drinks — they trademarked the idea in 2013 — and they are suing Sodalicious for taking their idea.

Sodalicious, which opened three years after Swig, responded to the lawsuit by saying that “dirty” had been used to refer to flavor-added drinks long before Swig employed it, and that the trademark should be canceled. Lawyers pointed to the dirty martini as evidence that Swig did not own the idea.

Lawyers are involved in Utah over the use of the word "dirty" being trademarked and locked up for the purposes of making drinks. If that isn't a clear example of the trademark office's inability to properly assign unique identifiers, then I can't imagine what is. As the article notes, there is no issue here of customer confusion. The fans of both companies are lining up on social media circles to vehemently defend their preferred brand. Everyone knows who's who in this game. Yet, there's a legal battle, all because a common term was trademarked.

It should be noted that the use of "dirty" isn't the only contention in Swig's lawsuit, which also accuses Sodalicious of using bubbles in its logo and serving cold cookies with pink frosting, because that's apparently something worth a lawsuit nowadays. Still, without the trademark on the word "dirty", the suit likely doesn't happen.

“It’s turning people against Swig,” she said of the lawsuit. “Which is a shame, honestly, because they’re trying to do business, and I’m sure they’re very nice people.”

But five minutes down the road, at a Swig shop surrounded by its own circle of minivans, a shift leader, Bronwyn Varner, 18, insisted that her customers were as loyal as ever — and that Swig would win the legal battle.

Fantastic, except its all that brand loyalty, completely lacking in any consumer confusion, that is the very reason why no lawsuit, and no trademark on the word "dirty", should ever have happened in the first place.

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