Lawsuit claims only one Utah company has right to sell ‘dirty’ sodas

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By Dora Scheidell

SALT LAKE CITY -- The Utah soda war is fizzing up.

The specialty soda franchise, Swig, filed a lawsuit in April against Sodalicious, claiming trademark infringement.

Swig CEO Justen Ericksen claims Sodalicious copied numerous things about his business, from the use of the word "dirty" to describe flavored sodas to their pricing structure.

“We just want them to stop using our trademark: It’s our brand,” Ericksen said.

However, in the lawsuit of Swig v. Sodalicious, one side refuses to play dirty. Sodalicious owner Annie Auernig says they’re focusing all their energy on their business.

“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 said.

Instead, Sodalicious is letting its customers do the fighting for them. The war is spilling out onto social media, with loyal Sodalicious lovers coming to the company’s defense on Twitter. 

“I would be surprised, but if you think of our demographic it is primarily women, mothers who are really devoted to their caffeine and their sugar,” Auernig said.

Ericksen said they tried other avenues of recourse before pursuing legal action.

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

Swig says they were granted the "dirty" trademark by the US Patent and Trademark Office. They say they asked Sodalicous to stop using the word "dirty" last November, and, when they refused, they said they had no choice but to file a lawsuit, which is currently in the very beginning stages.

They may be in the sugar business, but there’s nothing sweet about this ongoing competition.

11 comments

  • mindy aguayo

    Wow its a word and if they are going to go after sodalicous for it then there are at least 10 others places they need to go after also. There are so many places that now use the rearm “dirty”. Get over it.

  • KBA

    What a stupid lawsuit. You should never be granted a trademark for an adjective. Are we going to all have to pay royalties to Webster himself every time we use a word in the dictionary? Bottom line is Sodalicious runs a more successful business that is leaving Swig to cry in their own soda.

  • S_Toast

    This is stupid. Really? Do they seriously think they are losing money by another company using the word “Dirty”? I don’t usually frequent these overpriced drink shacks but I’m boycotting Swig just based on their stupid lawsuit. That’s like saying other crayon companies can’t have a “Red” crayon because Crayola said it first.

    • MEB

      Appreciate your expert legal analysis here. You can’t necessarily trademark an adjective like “Dirty” or “Big”, but you can certainly trademark a product name like “Dirty Coke” or “Big Mac”. That’s where the violation comes in. Swig went through the effort to trademark their idea, and it’s protected under the law. Sodalicious stole the idea, and needs to be held accountable.

      • KBA

        I disagree. They use the adjective to describe the addition of an ingredient added to a drink named differently than Swig’s…just like attaching “low-sodium” or “fat-free” to other food products in the industry.

  • KVD

    Not to mention that swig totally stole the “pink cookie”, from a gas station/bakery that’s been making/selling those cookies since I was a kid (like at least20 years). Swig likes to pretend like they came up with their own “pink cookie”, which is such a lie!

  • Jacob Shallus

    Trademark law is more complex than most of the commentators appreciate. In short, a professional trademark examiner at the U.S. Patent and Trademark Office (USPTO) determined Swig should be granted this registration. Now Sodalicious doesn’t want to play by the rules. If the situation was reversed, you can bet Sodalicious would be taking trademark law more seriously and be doing the same thing Swig is doing. And many people don’t realize that trademark law isn’t so much about protecting Swig, it’s about protecting consumers from being confused about the source of goods/services. Swig has a bona fide trademark registration, and the USPTO has determined that their soda products are allowed to be labeled with the DIRTY mark. Anyone else who is using the mark for the same purposes *could* end up deceiving a consumer as to what they were actually buying, and from whom. It doesn’t matter whether it’s intentional or not. If Sodalicious was so concerned about this matter, they should have just come up with a new term for their product. Save everyone the headache.

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