A rose by any other name may still be a rose, but what about a Unicorn Latte?
Starbucks briefly sold a Unicorn Frappuccino for a few days in April. This was enough to become a defendant in a trademark infringement lawsuit, brought by Montauk Juice Company, owners of The End a juice shop in Brooklyn NY, and creators of the Unicorn Latte.
According to the complaint, The End sells creative coffee and blended beverages, and their greatest invention thus far is the UNICORN LATTE, a healthy, unique, colorful, blended beverage, which was first sold around December 2016.
Recognizing that they had a unique and extremely marketable drink, in January 2017 they applied for a US trademark for “UNICORN LATTE”. This trademark application is progressing, and has received tentative approval from the U.S. Patent & Trademark Office.
Despite the names, neither the Unicorn Latte nor the Unicorn Frappuccino contain coffee. The Unicorn Frappuccino is a mixture of Blue Drizzle, Pink Powder, and other strange items. The Unicorn Latte is mixture of ginger, lemon, honey, and other healthy things.
The End put a lot of time and effort into marketing its Unicorn Latte, and had gotten a lot of positive press and social media exposure, including an article in the Huffington Post. However, according to the complaint, after Starbucks launched its product people began to confuse the Unicorn Latte with the Unicorn Frappuccino and began to believe that The End was perhaps affiliated with Starbucks.
The Unicorn Latte generates about 25% of The End’s revenue, and well, its parent company, Montauk Juice Company, decided to sue Starbucks for trademark infringement.
The complaint acknowledges that Starbucks is no longer selling the Unicorn Frappuccino. However, the complaint provides evidence of actual customer confusion, including photos of the Starbucks product under the #UnicornLatte hashtag used by The End. In addition, the complaint alleges that the Starbuck product was inferior, stating that “People Magazine proclaimed that Katy Perry, a world-renowned recording artist and marketing icon, ‘Spits Out Starbucks’ Unicorn Frappuccino After One Sip.'”
The complaint also alleges that Starbucks threatened to oppose the trademark application for UNICORN LATTE. Before a trademark can be finally registered on the Principal Register, the mark must be published for opposition, giving third parties time to oppose the mark. The UNICORN LATTE mark has been approved for publication, but has not yet been published. Time will tell whether Starbucks will oppose this mark, although there does not appear to be any valid grounds for any such opposition.
Conclusion: TRADEMARK YOUR BRAND NAME! It is apparent that UNICORN LATTE has been a huge success for The End, bringing good press and social media coverage to the juice company. If The End had not applied for a trademark *before* Starbucks began selling its Unicorn Frapp, The End would have no leg to stand on. It would have no case, its product name would have been diluted, and it would have been out-competed by Starbucks.
As it stands now, The End has a good chance of preventing Starbucks from making the Unicorn Frappuccino a permanent product, and it even has a chance of recovering damages from Starbucks.
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