Big Red Soda Sues Big Ben Soda Over Big Trademark Dispute

from the big-deal dept

It's quite easy to get caught up in some trademark disputes where the trademarks are of a short nature and the industries are such that there are only so many ways to present a product. In those situations, it's too simple to point at two brands and claim they are similar, therefore, boom, trademark infringement. Instead, a little context matters. Let me show you what I mean using one recent example.

Two soda makers, Big Red and Catawissa Bottling Company, are currently at odds over the latter's Big Ben's Soda brand.

Big Red, the Austin-based maker of bottled red soda, is suing a small Pennsylvania soda maker, Catawissa Bottling Company, alleging that its Big Ben Cream Soda – also red in color – infringes upon its trademark, reports the Dallas Morning News.

According to court documents, Big Red attorneys say Catawissa's soda "is currently packaged in the same manner as Big Red soda: a clear bottle bearing a water droplet and the 'Big Ben' words" which are themselves substantially similar to the 'Big Red' words," and that the typeface and graphics on the bottles of the two sodas are too similar.
Again, you can see where a little context is important here. Both companies are making bottled soda. For that reason, we can pretty much just throw the part about both being sold in a clear bottle out, because, duh, there's nothing unique in the industry there. It's the other claims that are important. The least important of them is the "Big Ben" brand name, because "Big" is the only similarity, "Big" is a super-common word that isn't unique, while "Ben's" and "Red" have nothing to do with each other. The name of the "Big Ben's" brand is only relevant if the other claims Big Red makes are true: if the packaging graphics are similar, if the type-font of the words is similar, and if there is likely to be customer confusion resulting from either.

Judge for yourself how valid Big Red's claims are.


How similar is the packaging and font to you? If you answered that they don't look similar at all, then ding, ding, ding, you're correct! There seems to be little chance of customer confusion over the two brands at all, honestly. The only Big Red's dispute that might make some kind of sense would be if it thought that Catawissa had seen Big Red's popularity and tried to come up with a brand, any brand, that appeared just similar enough to try and make customers think it was a cheap knock-off. There would be a problem with that theory, however.

It should be noted that Catawissa has been making Big Ben-brand soda since 1926. Big Red's trademark dates back to 1957, and was the result of a consumer nickname that stuck.
It's a product almost a century old, in other words. Oops. Big Red, I'll note for you, is partially owned by the same company that makes Dr. Pepper and Snapple, so I'm sure there's some access to a bit of legal firepower on their end. It'd just be nice if all that firepower was reserved for actual infringement cases.

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Filed Under: big ben, big red, soda, trademark
Companies: big red, catawissa bottling company


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  • identicon
    Anonymous Coward, 11 May 2015 @ 9:50pm

    It would be awesome karma if Big Red's trademark was nullified because of their own lawsuit.

    reply to this | link to this | view in chronology ]

  • identicon
    dr evil, 11 May 2015 @ 11:23pm

    time for a countersuit

    and copy Big Reds argument word for word .. reversed, of course, where necessary.

    reply to this | link to this | view in chronology ]

  • identicon
    Michael, 12 May 2015 @ 4:45am

    is currently packaged in the same manner as Big Red soda: a clear bottle bearing a water droplet

    Oh my gosh! Another company put SODA in a clear bottle with a water droplet? How did they come up with that without possibly copying YOUR idea? Shouldn't they be using a box with a wine glass on it instead?

    While I like the idea of trademark protecting consumers from products designed to be confusing, I think it is time we removed trademark law entirely just because trademark lawyers are obviously a**holes.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2015 @ 1:37pm

      Re:

      No need to get rid of trademark law, just refine it so that it does something useful to society at large. Granting ownership of brands is NOT useful to society at large. Giving those harmfully decieved some recourse is.

      So, reform trademark so that brand owners have no standing and cannot successfully sue (preferable with draconian penalties for trying) and make being a customer harmed by deceptive presentation the sole cause for a lawsuit. And make it plain that "harm" includes littler issues such as purchasing something you didn't want/like as a result of such deception.

      Won't happen though - too much corporate money flowing (being extorted from?) big business for any elected official to risk doing something actually worthwhile...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2015 @ 5:18am

    Big Red Dog also sues

    Clifford says, "I have a series of books about me. I demand you both stop infringing on my Trademark."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2015 @ 5:57am

    It would be nice if legal firepower wasn't something you needed to have available to create damn near anything.

    reply to this | link to this | view in chronology ]

  • icon
    Oblate (profile), 12 May 2015 @ 6:00am

    Lawsuit found flat?

    Do they not think that the judge will, at any point, actually look at how the two bottles to determine the validity of the claims? Would claims this blatantly false make Big Red liable for a countersuit?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2015 @ 6:44am

    I'd be more likely to confuse Big Ben's with Pepto Bismol.

    reply to this | link to this | view in chronology ]

  • identicon
    Big Chewing Gum, 12 May 2015 @ 8:25am

    *Rubs hands evilly*

    Once Big Red Soda has worn themselves in court fighting Big Ben Soda, we will be able to sweep in and nail who ever survives for stealing the name of our gum!

    All according to plan.

    reply to this | link to this | view in chronology ]

  • identicon
    Phibian, 12 May 2015 @ 8:35am

    Big Red's bottle looks much more like root beer to me than Big Bens

    reply to this | link to this | view in chronology ]

  • identicon
    Josh Taylor, 12 May 2015 @ 8:41am

    Doesn't Big Red Soda infringes Big Red gum's trademark?

    Isn't Big Red a gum brand? Aren't the soda makers infringing Big Red's gum trademark?

    reply to this | link to this | view in chronology ]

  • identicon
    mark creasy, 7 Jun 2015 @ 8:35pm

    big red vs big bens

    I live about 10 miles from where big bens is bottled. Big bens tastes like vanilla cream. I had never seen big red soda until about 2 weeks ago. It just started showing up in a few of our local stores. I tried it and it tastes nothing like big bens. It tastes like a piece of bazooka bubblegum. Our local paper said that big bens started in 1925 and big red started in 1937. I don't know how big red could claim anything when they didn't start until 12 years after big bens. just sounds like they are grabbing for straws and hope the judge isn't paying any attention.

    reply to this | link to this | view in chronology ]


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