Coffee giant Starbucks faced a lot of mixed reviews since coming out with their new colorful Unicorn Frappuccino. Most recently, a cafe in Brooklyn called The End weighed in legally. On Wednesday, Lawyers for The End filed a Trademark Infringement lawsuit in a Brooklyn court claiming Starbucks stole their drink.
The End is a small cafe located in Williamsburg – a small neighborhood located in Brooklyn. The location is known as being somewhat of a “hipster” area thriving with lots of young millennials.
In the lawsuit, they claim that they came up with the multi-flavored-non-coffee beverage months before Starbucks unveiled their own. The End claims their drink – the similarly named Unicorn Latte – is also is pink and blue and has no coffee in it.
Per the January 2017 filing with the United States Patent and Trademark Office, Attorney Jason Foscolo listed the mark’s first use was October of 2016. Starbucks did not introduce their Unicorn Frappuccino on the menu until April.
“The size of and scope of Starbucks’ product launch was designed so that the Unicorn Frappuccino would eclipse the Unicorn Latte in the market,” confusing the Brooklyn company’s customers, the lawsuit alleges. “In addition to having a highly similar name, Starbucks’ Unicorn Frappuccino shares visual similarities to the Unicorn Latte in that both were brightly colored and featured the colors pink and blue prominently.”
A Starbucks rep told TMZ that the suit is without merit and that the drink was inspired by many unicorn-themed foods and drinks trending on social media.
Montauk Juice Factory, the cafe’s parent company, created a successful Unicorn Latte “that our clients transformed into a social media sensation, developed (as) a famous and valuable trademark, and took the appropriate steps to protect,” Attorney Josh Schiller said in a written statement. “Starbucks, with its thousands of coffee shops, launched a competing product with a similar look and name, and marketed it in the same channels where our client’s product became famous… severely damaging our client’s mark.”
Per the USPTO, if a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement. 15 U.S.C. 1114, 1125. The standard is “likelihood of confusion.” To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant’s intent.
So, for example, the use of an identical mark on the same product would clearly constitute infringement. Using a very similar mark on the same product may also give rise to a claim of infringement, if the marks are close enough in sound, appearance, or meaning so as to cause confusion. On the other end of the spectrum, using the same term on a completely unrelated product will not likely give rise to an infringement claim.
As such, Starbucks may have poured themselves a big one. Small business owners should always take the time to secure ownership of their marks. It’s well worth the expense.
In their lawsuit, The End is seeking unspecified compensation as well as a public apology.