Dew Unto Others? Pepsi Puts Cabosh on “Can Dew” Soda

“Walk me out in the morning dew my honey, Walk me out in the morning dew today.”  The Grateful Dead

Mountain Dew, that citrus soda with the radioactive green hue and hyper caffeinated recipe, has come a long way since hitting the market in the 1940’s.  It began as a regional beverage.  Then Pepsi picked it up and launched it nationwide in 1964.  The original ad campaign painted “Dew” as a Hillbilly drink, with a mountain man yodeling “Yahoo, Mountain Dew” behind the strains of a backwoods banjo.  The beverage of choice for the Deliverance set.

Today, Mountain Dew has jettisoned its bucolic heritage to morph into the go-to drink for people on the go who need more kick in the can than Pepsi or Coke deliver.  It’s also become an iconic trademark in its own right, the fourth leading soda behind Coke, Pepsi and Diet Coke, with sales of over $6 billion.

Any surprise then that  a guy named Jay Pirincci decided to launch a soft drink that he calls “Can Dew?”  Pirincci no doubt wanted to get a marketing boost from “Dew” that would kickstart his product in the crowded beverage market, just as Pepsi’s drink delivers a kick in the can to millions of satisfied customers.

With its usual can do attitude towards trademark protection, Pepsi pounced when it learned about Pirincci’s “Can Dew” plan.  And yesterday, the  judges at the Trademark Office agreed with Pepsi that “Can Dew” is confusingly similar to Mountain Dew when used on fruit-flavored drinks.   They had little trouble reaching that decision, given the fame and longevity of Mountain Dew and Pirincci’s lack of any credible reason for latching on to the word “Dew” as a trademark for soda or juice.  In a prior foray into social networking, Pirincci  tried to hatch an “anti-Facebook” that called “Foebook.”  His track record as a brand-name punster drew no smiles from the judges at the Trademark Office.

And his argument that shoppers would think of the phrase “Can Do” instead of Mountain Dew fell even flatter, particularly when Pepsi came in with a survey by noted expert Hal Poret that showed massive consumer confusion.  Over 50% of people surveyed thought “Can Dew” was related to Mountain Dew.  The Trademark Office ruled that the evidence was indisputable and decided the case on summary judgment as to Pirincci’s planned use of Can Dew for soda and juice.

But despite his thrashing from the Trademark Office, Pirinnci salvaged one “dew over.”  The judges couldn’t decide whether Mountain Dew is infringed by “Can Dew” for nutritional supplement drinks rather than soda.  The parties will continue fighting that issue as the case proceeds towards a trial.  But with the summary judgment win, Pepsi’s lawyers are probably licking their chops for more in the spirit of today’s QUOTE OF THE DAY:  Bring out the chips, the taco dip, and the Mountain Dew… get ready for a victory.”  Milwaukee Brewer’s Blogger Benny K, Can’t Wait to Get on the Road Again, Oct. 4, 2011

2 Comments

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2 responses to “Dew Unto Others? Pepsi Puts Cabosh on “Can Dew” Soda

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