Utah’s ‘dirty soda’ war goes to court

SALT LAKE CITY -- The long-running legal battle over who can use the term "dirty" to describe flavored sodas that have become a craze here in Utah has finally gone to court.

In a hearing in U.S. District Court on Thursday, attorneys for Sodalicious and its founders asked a judge to dismiss a lawsuit leveled against them by rival Swig for failure to state a claim.

Swig sued Sodalicious two years ago, accusing it of violating the trademark on the term "dirty soda" to describe flavoring in sodas. Sodalicious counter-sued, arguing the term is generic and there are a number of other shops in Utah who also use it.

Swig holds the trademark on the term "dirty" to describe the sodas.

"It's just in this narrow area, these kinds of drinks, these soda shops, we've created this idea to use 'dirty' in these drinks. We've trademarked it and we're just trying to enforce it in this case," Swig attorney Mark Bettilyon told FOX 13 outside of court.

Swig has accused Sodalicious of not only copying the term "dirty soda," but its look and business model.  But Sodalicious argued to the judge that Swig is not unique. In court, the shop argued to the judge that the term "dirty" is generic and showed the judge a number of styrofoam cups of other flavored soda shops that look similar to Swig's.

"They haven't been able to state claims. They say they're unique, but there's hundreds of locations that sell soda with syrup that started before Swig, that are contemporaneous with Swig," Sodalicious attorney Tessa Santiago said outside of court. "People use the term 'dirty.' They decided to pick on Sodalicious, we think, to stamp out the competition."

Santiago argued that even if Swig holds the trademark, it hasn't stated a plausible claim over enforcement. Bettilyon said they weren't seeking to declare anything "dirty" to be off limits (referring to a "dirty martini") but wanted to protect what it has narrowly trademarked.

Flavored soda shops have become wildly popular in Utah, with dozens of spots opening all over the state. They're similar in offering syrups and flavor shots in styrofoam cups with cookies on the side. In morning and lunchtime rushes, drive-thrus at these shops are often stacked with cars.

Perhaps as a result of the litigation, many flavored soda shops FOX 13 visited on Friday avoided using the term "dirty" on their menu boards. Some used words like "filthy" or "nasty" to describe the drinks instead. Others came up with their own drink names.

Judge Dale Kimball did not issue a ruling on Thursday, but took the case under advisement. If he does not dismiss Swig's lawsuit, the case could go to trial in November 2018.