PepsiCo Files Notice of Opposition Against Trademark Application for DEW LIFE

On Wednesday, PepsiCo, Inc. filed a Notice of Opposition with the Trademark Trial and Appeal Board opposing a trademark application for “DEW LIFE,” filed by Santos Solutions Ltd. 

According to the notice, Santos Solutions, a United Kingdom company, filed an intent-to-use application on October 23, 2020 for the stylized mark for drinking glasses and kitchen accessories including tumblers, drinking straws, drinkware brushes and drinkware kits. 

PepsiCo states it has used and owned the marks MOUNTAIN DEW, DEW and MTN DEW  since 1948, 1980 and 2009 respectively. Reportedly, in addition to the three prior mentioned marks, PepsiCo has registered several additional marks that incorporate the other marks. PepsiCo added that the DEW Marks have become famous and are one of the most renowned brands in the United States.

According to the notice, the DEW Marks have been used in connection with products and services including but not limited to beverages, soft drinks, energy drinks, clothing, sporting events, entertainment services and live musical performances. Further, the notice states that several of the DEW Marks have become incontestable under section 15 of the Lanham Act. 

The beverage conglomerate argues that the registration of the mark DEW LIFE in connection with goods stated in the application is likely to cause consumer confusion with PepsiCo’s own DEW Marks. According to the notice, there is a likelihood of consumer confusion because DEW LIFE includes the element DEW, and the marks are sold in connection to similar goods and services to similar target markets and through similar trade channels. Additionally, according to PepsiCo, the registration and use of the DEW LIFE mark would dilute PepsiCo’s famous and inherently distinctive DEW Marks. 

PepsiCo further argues that its prior registration and use of the DEW Marks grants it priority over the Santos Solutions application. The notice alleges that Santos Solutions should have been “fully aware” of PepsiCo’s well-known and famous DEW Marks and was at least on constructive notice through the DEW Marks prior federal registration.

PepsiCo opposes the application for DEW LIFE citing priority and likelihood of confusion under Trademark Act § 2(d) and dilution by blurring under Trademark Act §§ 2, 43(c). PepsiCo is represented by its in-house counsel.