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Sparkling Water’s Flat Trademarks

By Draeke Weseman on August 29, 2018
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Everyone knows if you really want to get zero calories from a beverage without any strings attached, you have to drink water. But what if you hate water? Try sparkling water! Look how exciting it is:

If sparkling water is the remedy to plain old boring water, why are some trademarks for sparkling water so … flat?

Back in May, Steve wrote about a new Pepsi sparkling water product branded as bubly™. That’s “bubbly” misspelled “bubly.” For sparkling water, it’s also descriptive, probably generic, and definitely not a conceptually strong trademark. Just look at this snip from the Wikipedia page for “carbonated water,” listing “bubbly water” as a generic alternative term:

Then earlier this month, it was announced that Pepsi has agreed to buy SodaStream, the popular manufacturer of at-home sparkling water makers, its most economical model branded Fizzi™.  That’s “fizzy” misspelled “Fizzi.”

De ja vu, anyone?  Take a look at the Wikipedia page again, if you have to:

So, here we have another descriptive, probably generic, definitely not conceptually strong trademark that lacks any suggestive, inherently distinct sparkle. And if there’s any doubt, check out the descriptive uses of the word “fizz” right on the product packaging:

And on the label attached to the machine:

And on the product website:

And in the consumer comments:

And in the FAQs:

Do marketers of sparkling water hate trademarks? (And why are they such bad spellers?)

Perhaps we’ll never know. Or perhaps the answer is simply that these marketing types just wanted to avoid this:

Video: link

Or this:

But what’s the fun in something so flat!

Marketing-types, what would you do? Would you bottle the brand that is so flat it needs no imagination for its meaning to bubble up in the minds of consumers? Or would you go with the brand that nobody knows how to say but plenty of folks enjoy . . . and enjoy poking fun at?

Photo of Draeke Weseman Draeke Weseman

View my professional biography

People often ask me why my name is spelled the way it is. When I was born, my mother added an extra “e” in the middle to distinguish it from being confused with the word “drake,” meaning…

View my professional biography

People often ask me why my name is spelled the way it is. When I was born, my mother added an extra “e” in the middle to distinguish it from being confused with the word “drake,” meaning “male duck.” The strategy was mostly successful. (I still earned the nickname “the mallard” for a short time and there was even a duck call at a tenth grade basketball game or two, to be used on the rare occasion I scored any points).

Having an uncommon name, I noticed any other “Drake.” Whether it was the secret identity of my favorite cartoon character, a hotel in Chicago, a university in Iowa, a person everybody loves (except George), a fictional soap opera doctor, or a rapper from Toronto. But it wasn’t until I was in law school studying trademark law and likelihood of confusion that I actually experienced firsthand the confusion of being confused with another “Drake.” A fellow student casually commented that they did not know I was such a fan of salsa dancing (I wasn’t) but it turns out another “Drake” was and had posted a request for dancing partners on some law school bulletin board. This felt like infringement to me!

My understanding of trademark law has come a long way since, but it is with this personal experience that I practice and write about trademark law. On DuetsBlog, you will find posts from me about my personal favorite brand and other personal topics of interest. I may occasionally take a controversial position, but only because I can – with that extra “e” in my name, even if my argument is questionable, one thing is certain: I’m not a quack!

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  • Posted in:
    Intellectual Property
  • Blog:
    DuetsBlog
  • Organization:
    Winthrop & Weinstine, P.A.
  • Article: View Original Source

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