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Unicorn Latte Beverage Battle

The End, a Brooklyn-based cafe, is suing Starbucks on the grounds (get it?) that Starbucks’ Unicorn Frappucino infringes on The End’s trademark rights. Click here to read the Unicorn Complaint.

The End claims to have developed its Unicorn Latte drink in the Spring of 2016. Their complaint states:

The Unicorn Latte does not contain cow’s milk, processed sugar, or food dye. Instead, the Unicorn Latte contains a number of superfoods, which are embraced by the wellness community for their “magical” healing properties. The “Unicorn” in Unicorn Latte is meant to evoke in the consumer’s mind the magical characteristics associated with the mythical creature. The colorful look of the Unicorn Latte is, in part, meant to play on the pop-culture association of unicorns with bright or pastel colors and, in part, because the Unicorn Latte fits with the current trend of colorful foods—a relatively recent interest, particularly on the Internet, with multi-colored foods that includes Unicorn Noodles, Rainbow Bagels, Mermaid Toast, and even Unicorn Poop.

On January 20, 2017, they filed an application with the United States Patent and Trademark Office to register UNICORN LATTE as a trademark in connection with the following list of goods: Fruit juice; Fruit juices; Fruit juices and fruit drinks; Herbal juices; Vegetable juice; Vegetable juices; Vegetable-fruit juices. The application is moving forward.

Need a refresher on trademarks? Click here for a Trademarks 101 slide show & podcast

The Unicorn Latte became popular and received a good deal of press. The End claims that “the Unicorn Latte has generated significant revenue for The End, accounting for approximately 25% of the store’s revenue since January 2017.”

On April 18, 2017, Starbucks launched its Unicorn Frappucino for a limited time release. The image above shows the two goods in comparison. The End claims that “Starbucks’ Unicorn Frappuccino shares visual similarities to the Unicorn Latte in that both were brightly colored and featured the colors pink and blue prominently”.

While Starbucks didn’t use the exact name Unicorn Latte, The End’s complaint claims:

Almost immediately, consumers became confused over the origination and affiliation of the Unicorn Frappuccino. On Instagram, the hashtag #unicornlatte began to be populated with pictures of Starbucks’ Unicorn Frappuccino. Comments on Instagram show evidence of consumer confusion as to the origination of the blended beverage, with many people believing that Starbucks invented the beverage.

As my readers will know, likelihood of confusion is the basis of a claim of trademark infringement. A trademark has been infringed if there is a likelihood that a consumer will confuse the sources of the two goods.

The End claims to have sent Starbucks a cease and desist letter on April 24, and that Starbucks has failed to comply. Accordingly, The End filed its lawsuit in Federal Court in New York on May 3, 2017.

Starbucks should have seen this coming. There’s no way they were unaware of The End’s product, given the media attention it received. Certainly, Starbucks’ attorneys are smart enough to know that they should search the USPTO database for conflicts before launching a new, branded product.

That said, The End acknowledged in its complaint that the word “Unicorn” had previously been applied to other foods, including noodles and “Unicorn Poop” (whatever that is.) Starbucks may be able to claim that the word “unicorn” as applied to a food product is merely descriptive of certain characteristics that consumers will expect, including sweetness and a bright color scheme. Merely descriptive terms are entitled to little, if any, trademark protection.

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