On Wednesday, PepsiCo, Inc. filed a notice of opposition to the Trademark Trial and Appeal Board against Jessica L. Freedman for her trademark application for the mark PEPY.
According to the notice, on March 28, 2021, Freedman, an individual located in Brooklyn, New York, filed a trademark application to register the mark PEPY in connection with non-alcoholic mixes used in the preparation of alcoholic cocktails.
The notice states PepsiCo has been in the beverage business for over 100 years and has become a well-known producer of carbonated soft drinks, juices, ready-to-drink teas and coffee drinks, isotonic sports drinks, bottled water, related products and services, as well as other consumer merchandise.
PepsiCo cites its PEPSI mark, which it has used for over a century, as the basis for its opposition. In the notice, PepsiCo states it has used the PEPSI mark in connection with various beverages and other products and their advertising, marketing, sales and promotional services. Further, PepsiCo states that PEPSI is marketed and sold on a nationwide basis, supported by hundreds of millions of dollars of advertising and promotion each year with PEPSI-branded products being sold in almost every supermarket in the United States.
In addition to PepsiCo’s prior common law rights, the notice also purports that PepsiCo has registered four trademarks that incorporate the PEPSI mark with the first PEPSI mark registered in 1967.
PepsiCo argues that registration of the mark PEPY is likely to cause consumer confusion, mistake or deception between the opposition’s mark and PEPY. To support this allegation, PepsiCo argues that PEPY is nearly identical in sound, appearance and commercial impression to the PEPSI mark. Further, it argues the products in connection with the PEPY mark are similar, complementary and related to the products connected to the PEPSI mark.
Additionally, PepsiCo argues that registration of the mark PEPY is likely to dilute the famous and inherently distinct PEPSI mark thus barring it from registration.
PepsiCo opposes the registration of the mark PEPY arguing that it is barred by the provisions of Section 2(d) of the Trademark Act of 1946 due to PepsiCo’s priority and the likelihood of confusion between the marks, and Trademark Act Sections 2 and 43(c) as its registration would cause dilution by blurring. PepsiCo is represented by its Senior Director of Trademark Counsel Paul A. Lee.