Sierra Mist-Information: Trademarks, Copyrights, and Fact Checking

In today’s fast-paced digital landscape, where information spreads like wildfire, it’s crucial to differentiate between fact and fiction, especially regarding branding. The recent drama surrounding PepsiCo’s rebranding of Sierra Mist to Starry and the subsequent viral claims made by a social media influencer Cierra Mistt has sparked widespread discussion on intellectual property rights, particularly trademarks and copyrights. In this blog post, we’ll delve into the nuances of naming in the AI age, emphasizing the importance of understanding trademark law, monitoring your brand, and discerning fact from fiction in the viral world. Disclaimer: we are not IP attorneys and always recommend using one when dealing with legalities of trademarks.

Key Takeaways:

• Understand the Difference Between Trademarks and Copyrights: It’s essential to differentiate between trademarks (which protect brand names and logos) and copyrights (which protect original works like music and literature). Misunderstanding these concepts can lead to confusion and misinformation about legal rights.

• Utilize Reliable Resources for Fact-Checking: Before accepting claims about trademarks or intellectual property, verify information using reputable sources like the U.S. Patent and Trademark Office (USPTO) website. This tool allows businesses and individuals to check trademark registrations and ensure they have accurate information.

• Maintain and Monitor Trademark Rights: Companies must actively monitor their trademark registrations to avoid lapsing rights. Even if a product is no longer on the market, it’s crucial to keep trademark registrations renewed to prevent competitors from claiming those names.

• Strategize for Trademark Renewal: Businesses can explore strategies to maintain trademark rights even with minimal active use. Consulting with a trademark attorney can help outline a plan that demonstrates ongoing engagement with the brand, ensuring protection and renewal of the trademark registration.

The Viral Buzz: What Happened with Sierra Mist?

In 2023, PepsiCo made the bold move of pulling its beloved lemon-lime drink, Sierra Mist, off the shelves and rebranding it as Starry. While rebranding is not uncommon in the beverage industry, this particular transition took a dramatic turn when a TikTok influencer claimed that PepsiCo sent her a cease-and-desist letter over her use of the name Sierra Mist. This sensational story quickly gained traction, raising questions about trademark ownership and legal implications.

The influencer stated that she nearly changed her name due to the alleged threat but, with the help of her lawyer, discovered that PepsiCo had allowed the trademark rights to Sierra Mist to lapse. With this revelation, she purchased the rights and initiated her own claims against PepsiCo for infringement. However, this convoluted narrative raised eyebrows. How could such a significant company lose track of its trademark rights? And what does this mean for the average business owner?

The Key Distinction: Trademark vs. Copyright

At the heart of this discussion is a fundamental misunderstanding of intellectual property rights—specifically, the difference between trademarks and copyrights. Many articles covering this story conflated the two, leading to further confusion among readers.

Trademarks protect brand names, logos, and slogans used to identify goods and services. On the other hand, copyrights protect original works of authorship, such as songs, books, and art. This distinction is crucial when discussing issues like the one involving Sierra Mist.

As an expert in naming, it’s essential to clarify that this situation revolves around trademark law. The conversation should have focused on whether PepsiCo still held the trademark rights to Sierra Mist, not whether copyright laws were infringed upon. Understanding these differences can prevent misinformation from spreading and help businesses navigate their own branding challenges more effectively.

Fact-Checking the Claims

To better understand the claims surrounding the Sierra Mist rebranding, I conducted my own investigation using the U.S. Patent and Trademark Office (USPTO) website. This site serves as a valuable resource for anyone looking to verify trademark registrations and ownership.

Upon searching for Sierra Mist, I found that PepsiCo does indeed hold the trademark rights for the name. Even though the product may have been removed from shelves, the trademark registration remained live and active. This information underscores the importance of fact-checking and relying on reputable sources when discussing such matters.

The USPTO has significantly improved its interface over the years, making it user-friendly for those unfamiliar with trademark searches. By entering a brand name, anyone can easily access vital information, including registration status and history.

The Importance of Trademark Maintenance

If we consider the possibility that a major company like PepsiCo could let its trademark rights lapse, we must ask how common this is in the business world. In reality, it does happen, particularly among larger corporations that undergo acquisitions or reorganizations. In such cases, it’s possible for companies to overlook the value of certain trademarks, especially those associated with discontinued products.

As professional namers, we can attest that maintaining trademark rights is essential. Allowing trademark registrations to expire can lead to competitors swooping in and claiming those names, which can create confusion in the marketplace. 

With the growing complexity of the digital world, where names and brands are becoming increasingly cluttered, companies must remain vigilant in monitoring their trademarks.

Navigating Trademark Use and Renewal

One of the most common misconceptions about trademark ownership is that a brand must always be in active use to maintain its registration. This is not entirely accurate. While it’s true that trademarks must be used in commerce to stay valid, businesses can take steps to maintain their registrations even with minimal use.

When it comes to renewing a trademark, companies must show that they are still using the name in interstate commerce—this means selling products or services across state lines. For companies that have paused the use of certain brands, strategizing how to demonstrate ongoing usage can be vital in preserving their trademarks.

For example, businesses can create a plan that outlines how they will gradually reintroduce a name or product while still demonstrating some level of active engagement with the brand. Engaging with a trademark attorney can provide.

Transcription:

Ashley Elliott (00:02):

Well, hello and welcome to naming in an A I 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 Sierra Mist 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 a changing her name, but her and her lawyer discovered that Pepsi O 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 U-S-P-T-O 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 U-S-B-T-O 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 U-S-B-T-O 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 we’re 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):

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.com, right? There’s only one owner of a.com worldwide. So we own name stormers.com. Nobody else in the world can own name stormers.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’ve 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 away 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. See

Mike Carr (10:08):

You guys. Bye-Bye.