Key Points:
- Trademark vs Copyright: Trademarks protect brand names and logos, while copyrights protect creative works like books and music. The Sierra Mist case was an issue regarding trademarks, not copyright.
- Fact-Checking IP Claims: The USPTO database confirmed PepsiCo still owns the Sierra Mist trademark, debunking viral misinformation about the brand name lapse.
- Do Trademarks Expire? Trademarks don’t just automatically expire when a product is discontinued.
- Preventing Trademark Loss: Businesses should regularly monitor and renew trademarks to avoid lapses that could allow competitors to come in and claim their brand names.
- Misinformation in Branding: Viral legal claims can be misleading – always verify trademark status on USPTO.gov or consult an IP attorney
What Happened with the Sierra Mist Trademark Dispute?
In 2023, PepsiCo pulled its beloved lemon-lime drink Sierra Mist off the shelves while rebranding to Starry. However, that rebranding took an unexpected turn when TikTok influencer Cierra Mistt claimed she was sent a cease-and-desist letter over her name. She further alleged that PepsiCo had let the Sierra Mist “copyright” lapse, allowing her to purchase their rights and file claims against the company.
However, as the podcast Sierra Mist-Information uncovers, this story was largely misinformation and misunderstood intellectual property law, particularly the difference between trademark vs copyright.
Trademark vs Copyright: What’s the Difference?
One of the biggest misunderstandings in this controversy centers on the distinction between trademarks and copyrights:
- Trademarks are all about protecting brand names, logos, and slogans – basically, anything that helps consumers recognize a product or service. For example, Sierra Mist as the name of a soft drink is a trademark.
- Copyrights, on the other hand, protect original creative works like books, music, and art. Think of it this way: the lyrics to a song or the text of a novel would be covered by copyright.
Since trademarks apply to brand names, the dispute over Sierra Mist was a trademark issue – not copyright infringement, as the influencer claimed, which is the first indicator that this was potentially false information.
Fact-Checking Sierra Mist’s Trademark Status
Podcast hosts Ashley Elliott and Mike Carr fact-checked the influencer’s claim using the U.S. Patent and Trademark Office (USPTO) database. They confirmed that:
- PepsiCo still owns the Sierra Mist trademark, even though the product was discontinued.
- Trademark rights don’t automatically expire when a product is pulled from shelves.
- USPTO.gov and an IP attorney are the best resources for verifying trademark registrations.
The viral misinformation surrounding this case underscores the importance of fact-checking legal claims before assuming their accuracy.
How Do Trademarks Expire?
Big companies sometimes lose trademarks, but it’s pretty rare for major brands like PepsiCo to just let valuable ones slip away. Even if a company isn’t actively selling a product, they can hold onto the trademark as long as they show some level of business activity across state lines (also known as interstate commerce).
If a company forgets to renew its trademark or can’t prove it’s still using it, someone else might be able to claim the name. That wasn’t the case with Sierra Mist – PepsiCo still owns the trademark, despite the rumors.
Protecting Your Brand’s Trademarks
For businesses and entrepreneurs, the Sierra Mist controversy serves as a valuable lesson in trademark maintenance and intellectual property protection:
- Monitor and Renew Your Trademarks – Regularly check your trademark’s status to prevent accidental lapses.
- Use the USPTO Database – Always verify claims such as trademark registration on reputable websites like USPTO.gov before believing viral legal stories.
- Consult a Trademark Attorney – If you own a brand, we always recommend working with an IP attorney to ensure due diligence in trademark registration.
Final Thoughts: Misinformation in the Digital Age
The Sierra Mist trademark story highlights the power of social media misinformation, and the importance of understanding intellectual property law. Before believing viral claims, always verify facts using reputable sources like USPTO.gov, or consult a trademark attorney to protect your brand legally.
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Podcast Transcript
Ashley Elliott (00:02):
Well, hello and welcome to naming in an AI Age. So today we’re coming at you with some viral content and some digging deeper, a little bit about what went viral. So in 2023, PepsiCo took their lemon lime drink, beloved known as Sierra Mist off the shelves, and rebranded the drink supposedly as Starry. I dunno if you’ve drank Starry. I don’t know how close it is to actually being Sierra Mist, but this is what happened. And what we’re here to talk about is not the rebranding, but the viral attention that this caught when a social media influencer named Cierra Mistt claimed on TikTok that Pepsi showed up with a cease and desist letter telling her that they were going to sue her for copyright infringement, which is our first key here. She said that she almost acquiesced and changed her name, but her and her lawyer discovered that PepsiCo had let the name rights to the brand lapse, and she bought the rights to the copyright and used it to go after PepsiCo for infringement. This is just a convoluted claim here. So why does this whole situation seem unlikely, Mike?
Mike Carr (01:14):
Well, first of all, I think there’s some confusion about copyright versus trademark, right? So really the conversation and the media that’s been reporting on this should be talking about this is a trademark issue, not a copyright issue. And that’s just hugely important. The laws are different, the types of things that are protected are different. So I think that’s the first misstep in terms of the conversation, and we can talk more about that. If you would like, or if there’s anything you’d like to add at this point, Ashley, about your understanding of trademarks versus copyrights, please share that with the audience.
Ashley Elliott (01:59):
Well, for sure, being an English teacher, we talk about copyrights, a former English teacher. I mean, I guess I’m always a teacher, but we talk about copyrights being more of a written play or song or those type of things, not necessarily brands or products that you’re going to be selling specifically. And so one way that you can tell is to go to the USPTO website to see if trademarks are actually registered and who has the rights to that. So what I did to try to double check this and really fact check is I went to the USPTO website. It contains all the information you need to know, and I looked up PepsiCo, I looked up Sierra Mist, and PepsiCo does in fact own the trademark rights to Sierra Mist. And on the USPTO website, if you’re not familiar with it, I mean it’s gotten significantly better over the years, and there’s so much information you can see, registration information, prosecution history, do they still have a registered or has it lapsed? Is it canceled? Is it dead? You can see all the status, and that’s a helpful tool to look at, especially if you’re looking to name something. They have a live registered and renewed trademark for Sierra Mist. So regardless of if the product is on the shelves or not, they still do have those trademark rights.
Mike Carr (03:15):
So I think the thing here to make sure everybody understands is the place to go to check is uspto.gov, and it’s the coolest interface. They upgraded their interface a few months ago. It’s pretty user-friendly, and while there are a lot of nuances into how to use it, if you would enter in something like Sierra Mist, you’d be able to see what’s out there and that PepsiCo does have the registration. But just to reiterate what Ashley was saying, trademarks have to do with names. That’s not what copyright has to do with. Copyright has to do with content. So the name of a song, the name of a product, the name of a company, if you’re using those things to sell services, that’s a trademark. If it’s the content you’ve written or if it’s the lyrics of the song or if it’s the text in a book that’s written content that’s protected by copyright law. And so that’s, I think, an important distinction to make. And I think that’s where the press has sort of misled everyone that this is not really a copyright issue, this is a trademark issue, and the laws are different, and how you check on them is different too.
Ashley Elliott (04:47):
Yeah, and I guess my thought was though, seeing this and seeing how this could be, we could all be misinformed on this situation. Let’s say a situation like this did happen and a big company did just for some reason, let their trademark rights lapse. They didn’t re-register or renew it. How likely is that to actually happen, in your opinion?
Mike Carr (05:09):
Well, it does happen. I mean, we’ve had folks over the years, especially with the larger companies that maybe have gone through some acquisitions. So they’ve acquired other companies and their portfolio of brands and not realize the value that that portfolio has. And since no one in the company or in the organization is assigned responsibility for products with names that have been discontinued or services that have been acquired and have names, but were no longer calling it that thing, they don’t worry about it.
(05:46):
I can tell you as a professional namer that every trademark you own, especially if it’s a short real word, is like a pot of gold. And the last thing you want to do is let those registrations expire and someone else come along and register that name either out from under you or in the same category or space that you’re in. So every year there’s more and more noise out there. There’s more and more clutter with the digital world that we’re in. AI is now coming up with all these Me Too kinds of names that sort of sound like everything else that’s already out there. It’s becoming increasingly difficult. I mean, a lot more challenging for even professionals to come up with really breakthrough, exciting, cool names. So if you own some of those, don’t let ’em go. I guess that’s my advice.
Ashley Elliott (06:45):
Yeah, monitor that. I mean monitoring to make sure that you are renewing and you are keeping those maintained. But also if you are maintaining a trademark, do you have to maintain its use in commerce or how does that work? Do you know?
Mike Carr (06:59):
I do. There’s a lot of misunderstanding about this that when you register a name as a trademark, it’s for a specific thing that you’re selling or a specific service that you’re offering. It’s not like a dotcom, right? There’s only one owner of a dotcom worldwide. So we own namestormers.com. Nobody else in the world can own namestormers.com. Regardless of what they want to do with that name, we own it. Well, that’s not the way Trademark Law works at all, right? You can have exactly the same name used over and over and over again and trademarked over and over again for different classes of goods and services. So you might have Sierra Mist for a soft drink, but arguably you could have Sierra Mist for a perfume. Now, because PepsiCo is PepsiCo, they might attempt to prevent your using it for a perfume, and they might be successful.
(07:58):
They’ve got lots of money and they have an established brand. But for most smaller folks, that would not be a problem, right? That the likelihood of someone confusing a perfume, it’s a different class of goods and services, with a soft drink. I think most folks feel those are different enough animals that they could coexist. And there are lots of examples. Odyssey is a name that’s registered hundreds of times around the world for all kinds of things. So it’s not just the Honda minivan, it’s all kinds of other stuff. So you can’t register a mark for everything. You also cannot renew a mark a trademark unless you’re still using it. So when I was talking about these companies that have acquired these portfolios of names, if you are no longer using that name and you can no longer show that you’re engaged in internet commerce, it’s more challenging to renew that and sort of keep that name alive.
(08:56):
And this is where I think a conversation with a trademark attorney, we’re not lawyers, we can’t give you legal advice, would really help you. So if you have that portfolio of names, and you’re not worried about those things expiring, and you’re listening to this and you say, well, maybe I should pay a little bit more attention to that portfolio, are there some strategies where with minimal use or with plans to use it, where we can still show bonafide, Hey, we’re still out there actively using it. Maybe not as a big a way as we were in the past, but we’re still using it to a certain extent in interstate commerce, that is commerce across state borders, often you can come up with a strategy that will allow you to renew that registration successfully and protect your ownership in that name.
Ashley Elliott (09:39):
I think this has been a very timely topic, thinking about the prevalence of AI, fake news, social commentary, everywhere these days. It’s really important to fact check from a reliable source, or check with an IP attorney or a government website like uspto.gov when you’re checking on this type of stuff. Well, thank you, Mike, for all of your insight. And be careful as things go viral, because you never know what’s true and what’s not true. We’ll talk to you next time. Bye.
