TTAB Finds Energy Drinks Related to Nutritional Supplements and Pickles

Beverage behemoth PepsiCo knocked the stuffing out of Defendant Rockstar Industries in this consolidated opposition and cancellation proceeding. The Board granted PepsiCo's petitions for cancellation of three registrations for the mark ROCKSTAR for nutritional supplements and related products, and sustained an opposition to two applications for snack items and pickles, finding confusion likely with PepsiCo's identical mark for energy drinks. This blog post will attempt to hit the "highlights." PepsiCo, Inc. v. Rockstar Industries LLC, Opposition No. 91247241 and Cancellations Nos. 92075918 and 92076204 (October 25, 2024) [not precedential].

Strength of PepsiCo's Mark: As to conceptual strength, the Board found PepsiCo's ROCKSTAR mark to be arbitrary and strong. As to commercial strength, PepsiCo submitted evidence of length of use, sales and advertising figures, consumer exposure through media, athletic sponsorships and popular music, and the other indirect evidence of consumer recognition. The defendants did not provide evidence of third-party uses in the relevant field "that would establish any diminished commercial or marketplace strength of PepsiCo’s ROCKSTAR marks under the sixth DuPont factor." The Board found that PepsiCo’s ROCKSTAR and formative marks enjoy "significant commercial strength." However, due to the lack of "more robust context for the sales and advertising figures, and the reach and impact of the promotional efforts, not at the farthest end of the spectrum of fame."

The Marks: Not much to talk about here. Since the marks are identical, the first DuPont factor weighed "heavily" in favor of PepsiCo.

The Goods: PepsiCo relied on a variety of evidence to establish the relatedness of the goods at issue. It submitted third-party use evidence and 33 third-party registrations in which energy drinks and some of Defendants’ goods appear under the same mark. In addition, cross-promotions between ROCKSTAR energy drinks, Matador beef jerky, Lays potato chips and Doritos tortilla chips "show the relatedness of these food and beverage items."

Turning to pickles and the like, "the evidentiary showing of relatedness specific to these goods is less than for the others." [Not surprising - ed.]. However, the Board found the evidence sufficient "in view of the strength of PepsiCo’s marks and the identicality of PepsiCo’s and Defendants’ marks."

The record establishes that snack foods which could include the pickles, pickled vegetables, or canned fruits and vegetables, are complementary to energy drinks, that energy drinks and various snack foods are promoted together, and that energy drink providers also offer a wide variety of snack foods under the same marks as their energy drinks.

Trade Channels and Classes of Consumers: The evidence showed that the respective goods are offered in some of the same trade channels, and the relevant consumers overlap.

Purchaser Care: The items are inexpensive, and the snack items may be purchased on impulse. As to supplements, consumers may exercise some care. However, the Board must consider the least sophisticated purchaser, and so the Board concluded that this factor is neutral vis-a-vis supplements.

Actual Confusion: Survey evidence supported a finding of likely confusion with respect to meal replacement products, energy bars, and/or dietary and nutritional supplements" that were the subject of the survey. Several examples of actual consumer confusion were "reasonably probative to corroborate the showing under this factor."

Conclusion: Defendants lost.

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TTABlogger comment: Pickles, pickled vegetables, or canned fruits and vegetables are complementary to energy drinks? Really?  

Text Copyright John L. Welch 2024.