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A colorful legal battle

by Kevin Peek

I can still vividly recall the tortured expression that appeared on my Starbucks barista’s face as I ordered the chain’s Unicorn Frappuccino on the final day of its availability. At first, I didn’t fully understand why he gave me that look. However, after I was handed the pink and blue beverage following 15 minutes of extraneously complicated magic behind the bar, I understood. While I did sympathize with the barista as I sipped my mystical drink, I’m sure his frustration paled in comparison to that of the owners of a little Brooklyn café called The End when they heard that Starbucks had released the Unicorn Frappuccino.

The End, along with its parent company, Montauk Juice Factory, filed a lawsuit against Starbucks accusing the grande coffee company of ripping off the Unicorn Latte, which is a beverage served at The End. The small, yet trendy, Brooklyn café alleged that the Unicorn Frappuccino sold by Starbucks overshadowed and confused customers with respect to The End’s Unicorn Latte. Further, it alleged that the fallout resulting from celebrities and others who did not enjoy the Starbucks pink concoction created negative publicity and hurt the sales of the Unicorn Latte in Brooklyn.

The End debuted its colorful drink in December 2016, which made up around 25 percent of The End’s revenue. The parent company even filed a trademark application for the drink in January. Starbucks offered its promotional drink from April 19 through April 23 of this year. While the Unicorn Latte at The End includes ingredients such as raw cashews and lemon juice, and the Unicorn Frappuccino is made with mango syrup and sour blue syrup, they both share eye-catching vibrant hues and polarized popularity. It is the colorful nature of the beverages that is the basis of The End’s trademark infringement lawsuit.

A trademark is a word, symbol or phrase used to identify a particular manufacturer or seller’s products and distinguish them from the products of another. The best example is the Nike Swoosh. A shoe that contains the Swoosh can safely be said to be made by Nike. But what if it wasn’t? Instead, imagine that Adidas decided to place a Swoosh on one of its shoe models. We have now entered trademark infringement territory. The standard for determining trademark infringement is the “likelihood of confusion” test. Obviously, if you walked out of a shoe store with a pair of shoes that contained a Swoosh, you would be fairly confused if you found out that the shoes in your hands (or on your feet, wherever you like to put the shoes on) were made by Adidas. Given that The End applied for the colorful trademark several months earlier, the vivid colors of the conception are the basis of the argument that The End is using to accuse Starbucks of trademark infringement.

The Brooklyn café has requested that Starbucks pay it the ill-gotten profits Starbucks gained from the sales of the Unicorn Frappuccino. Further, the café believes it has suffered additional damages due to the negative publicity that arguably hurt the sales of the Unicorn Latte. The Brooklyn café is certainly not one to be crossed, having previously sent a cease-and-desist letter to a restaurant in Times Square, which resulted in the restaurant changing the name of one of its drinks from the “Unicorn Latte” to the “Pegasus Latte.”

While Starbucks has since moved on to more colorful drinks, such as the Mermaid Frappuccino and Dragon Frappuccino, we are far from The End of the colorful legal battle.

Kevin Peek is a licensed lawyer in the state of Missouri who resides and works in St. Louis. Follow him on Twitter for commentary on all things legal and interesting at @Attorney_Peek.

This information is intended as general information about the law and legal system. It is not to be considered as legal advice for your specific situation.

A version of this piece was originally published on kevinpeek.wordpress.com.

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