In an opinion Monday, Judge Rochon denied a motion to dismiss a trademark suit brought by Danone, which makes STōK cold brew coffee against Chobani, which makes a “La Colombe”-branded competing product, over the phrase “BRIGHT & MELLOW” used on both packages as depicted below:
Danone has sold its STōK Cold Brew coffee under the “BRIGHT & MELLOW” label since January 2021, and alleges the phrase functions as both a flavor descriptor and an unregistered trademark. According to the complaint, La Colombe’s cold brew previously used the phrase “Bright & Flavorful” on a blue-and-yellow bottle—until Chobani acquired La Colombe in December 2023 and, Danone says, revised the packaging to more closely resemble STōK’s, including by swapping in “Bright & Mellow.”
Chobani moved to dismiss on multiple grounds, principally arguing that BRIGHT & MELLOW is generic or merely descriptive, that Danone isn’t using it as a trademark at all (as opposed to a flavor name), and that any use by Chobani is protected descriptive fair use. Judge Rochon rejected each argument at the pleading stage, repeatedly emphasizing that genericness, secondary meaning, likelihood of confusion, and fair use are fact-intensive inquiries that rarely can be resolved on a motion to dismiss.
For example, Judge Rochon ruled that, even if “BRIGHT & MELLOW” were considered merely descriptive, there were sufficient allegations that the phrase had acquired a secondary meaning, such that consumers associate it with STōK Cold Brew:
Dismissal is inappropriate at this stage because the facts about secondary meaning have not been fully developed, and Danone pleads concrete facts bearing on several of the secondary meaning factors. It alleges “hundreds of thousands of dollars” spent in advertising and marketing “the BRIGHT & MELLOW Product,” unsolicited industry and social media coverage, and sales exceeding “16.6 million units” and “nearly $100 million in revenue.”
Danone also expressly alleges that “consumers have come to associate BRIGHT & MELLOW with a single source.” These allegations permit a plausible inference that substantial sales, promotion, and consumer exposure occurred before Chobani allegedly adopted the phrase in late 2024.