POMWonderful LLC, which has created a market for pomegranate juice beverages and other products, has sued Backside Beverages, LLC, alleging that the company has infringed POM’s trademark with its Pompis energy drink. POMWonderful LLC v. Backside Beverages, LLC, No. 11-00760 (U.S. Dist. Ct., D. Utah, Cent. Div., filed August 22, 2011). POM’s complaint includes a comprehensive description of the actions it has taken and the $300 million it has spent to promote and protect its brand and trademarks since first introducing fruit-based beverages in 2002.
According to the complaint, the defendant has tarnished POM’s registered trademarks “because ‘pompis’ is a slang Spanish term for ‘backside,’ that is, ‘backside’ of a person. In English, ‘pompis’ is equally derogatory,— combining the term POM and the term ‘pis’ which phonetically sounds like ‘piss’.” POM contends that such derogatory use of its marks intentionally trades on its goodwill “while at the same time tarnishing the POM brand.”
POM also alleges that the defendant has placed a design in the middle of “Pom” to replace the “o” just as POM does, thus creating “a likelihood of confusion, mistake, and deception as to Defendant’s affiliation, connection, and/or association with POM among consumers and the trade.” POM further asserts that the defendant has connected “the health-focused POM® brand to a brand that conveys the opposite message. To the contrary, studies have shown that energy drinks are not healthful because of their high sugar and caffeine content.”
POM alleges trademark infringement under 15 U.S.C. § 1114, trademark infringement and false designation of origin under 15 U.S.C. § 1125(a), trademark dilution under 15 U.S.C. § 1125(c), and violation of Utah’s Unfair Competition Act. The company seeks a declaration of infringement, dilution and unfair competition as well as an injunction to stop the defendant from engaging in infringing activity; the recall, seizure, impoundment, and destruction of all infringing products; compensatory and punitive damages; lost profits; disgorgement; restitution; an accounting; an award to reimburse POM for corrective advertising; and attorney’s fees, costs and interest.