Soda wars: 2 Utah businesses get down, dirty over alleged trademark infringement

Soda vendors Swig and Sodalicious are currently involved in a trademark infringement lawsuit | Swig and Sodalicious images courtesy of Swig and Sodalicious Facebook pages, St. George News

ST. GEORGE — A lawsuit is ongoing between two Utah-based companies over treats, bubbles, signage, cups and use of the word “dirty.”

St. George-based soda specialist Swig Holdings LLC filed suit in April against the Provo-based Sodalicious Inc., alleging that Sodalicious has copied Swig’s business model and design elements and is unlawfully using Swig’s trademarked use of the word “dirty” in describing sodas containing flavor shots and other additives.

The very first Swig opened for business in St. George in 2010, and its trademark dirty sodas quickly became a hit among patrons.

Sodalicious opened its doors in Provo in 2013, its menu also boasting, among other offerings, “dirty” and “extra dirty” drinks.

Documents filed in the lawsuit allege that Sodalicious not only purchases ingredients and other products from the same suppliers Swig deals with but that Sodalicious “is a near exact knock-off of Swig’s goods and services.”

An amended complaint filed on behalf of Swig states:

Swig is informed and believes that Defendant’s use of the same combined elements as Swig is not accidental. To the contrary, Swig is informed and believes the Defendant is infringing Swig’s Marks and trade dress, and indeed has copied Swig’s entire business in order, to confuse consumers, trade on Swig’s goodwill and to gain business at the expense of Swig.

Swig owns the U.S. trademark and common law rights associated with the word “dirty,” according to the lawsuit.

But vending dirty drinks isn’t Swig’s only beef with Sodalicious.

The lawsuit also makes reference to Sodalicious’s use of white Styrofoam cups with brightly colored straws and pebble ice, which Swig also uses, as well as similar dessert items — called “treats” on the menus of both establishments — being sold by Sodalicious, including Swig’s signature sugar cookie, which is served partially frozen with room temperature pink frosting.

“In fact,” the lawsuit says, “Swig is informed and believes that Defendant purchases its cookie from Swig’s prior supplier — a company located in Southern Utah, far removed from Defendant’s only locations in Provo, Utah.”

The lawsuit additionally alleges that Sodalicious has duplicated visual elements that are Swig’s signature designs, including signage and cups bearing an oval containing the Sodalicious logo and depicting soda bubbles that is “nearly identical to Swig’s Logo Mark.”

The Swig menu board is white with blue borders and red and yellow accent colors, the amended complaint states, and Sodalicious’s menu boards are also white with a blue border. Sodalicious additionally utilizes the Swig colors and similar soda bubble images in its décor, signage, website and elsewhere, according to the lawsuit.

Issue is also being taken with the pricing of items. Until recently, the complaint states, Sodalicious’s prices were identical to Swig’s prices.

“Defendant’s conduct and the resulting consumer confusion has resulted in lost sales and damage to Swig’s goodwill and reputation,” the lawsuit says.

In a recent interview with Fox13, Sodalicious co-owner Annie Auernig said her company’s energies are being focused on business as usual, not the lawsuit.

“We’ve never engaged in a battle or a war or wanted it to be anything other than allowing people to make their own decisions,” Auernig told Fox13.

Swig CEO Justen Ericksen said the lawsuit was preceded by months of efforts to get Sodalicious to cease referencing dirty sodas, but to no avail.

“Several months of saying, ‘Please stop using dirty. If you stop using dirty, this will go away‘ and they refused,” Ericksen told Fox13.

Filing a lawsuit was the action Swig finally took.

The suit is in its early stages, with the most recent action being a reply filed Thursday on behalf of Sodalicious, to Swig’s response to a motion.

Swig has requested a jury trial, according to the complaint.

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Copyright St. George News, SaintGeorgeUtah.com LLC, 2015, all rights reserved.

 

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9 Comments

  • Forsooth September 20, 2015 at 6:44 pm

    So Swig wants to crush all competition and establish an uncontested monopoly. They’re becoming the IHC of overpriced sodas.

  • ladybugavenger September 20, 2015 at 7:54 pm

    It’s a dirty business

  • Bubbasheepherder September 20, 2015 at 10:22 pm

    I like how they feel even the ice they use is top secret. I bought a soda at a Maverick strore here in St. George with pebble ice, styrofoam cup, and flavored syrups. It is a good thing they didn’t carry bright straws or they would be in trouble. Get over yourself SWIG, you couldn’t even keep the store over in Hurricane open.

  • sagemoon September 21, 2015 at 9:08 am

    I’m on Swig’s side.

  • fun bag September 21, 2015 at 12:24 pm

    competition among these health food stores has to be a good thing

  • Randys Sister September 21, 2015 at 1:32 pm

    They didn’t invent those cups, bright straws, or the different flavor combinations. If their product is good and their prices are fair, they will pull ahead of the competition and stay ahead of them. Why start fights?

  • jibu September 24, 2015 at 1:43 am

    I also want to say, ‘Please stop using dirty. If you stop using dirty, this will go away‘ and they refused,”. I’m not on Swig’s side. …
    Ed. ellipsis (link removed – bad link leads to nowhere)

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