Back in the 1960s, Pepsi burst onto the scene by announcing to the youth of decade that they were the Pepsi Generation (they didn’t have a choice). Then, in the 1980s, Pepsi became “The Choice of a New Generation.” And finally, in the late 1990s, Pepsi hitched their trailer to the surely-to-never-go-out-of-style Spice Girls to announce the arrival of GeneratioNext. I am a little rusty on my LSAT logic games, but I think this means Pepsi’s newest marketing idea will be GeneratioNexter. Or maybe Generation Kitty-Wampus.

Yet it looks like Pepsi is a bit more creative as their newest marketing idea took a different path. What if, instead of moving forward in time, Pepsi moved backward in time? Presumably this was the idea behind Pepsi’s coy suggestion this week that it may be bringing back Crystal Pepsi. Yes, this Crystal Pepsi:


Maybe the best way to guarantee future success is to revive past failures. Crystal Pepsi was intended to be a healthier soda. Back then, people wanted natural and healthy options! But they didn’t want something that was too healthy, so it still had to be a soda.  Pepsi attempted to further this “natural” image with this slightly dated television commercial back in 1992:

And in case you had the same thought as me (“Didn’t SNL do a great spoof of this commercial?”) Yes, you can view it here, and it is superb. Unfortunately for Crystal Pepsi, though, it was pulled from shelves less than two years later.

So how did this resurrection happen? And is it really happening? A social media campaign reportedly led by LA Beast seems to be partially to blame. The Pepsi Twitter account tweeted the following letter, which appears to be written with a typewriter on letterhead left over from 1993 (hopefully intentionally, if so, kudos to you Pepsi marketing):

Crystal pepsi letterAccording to Pepsi, the letter is authentic. And Crystal Pepsi wouldn’t the first soda to be brought back from the dead: Coke revived Surge earlier this year, also due to social media demand. But Pepsi hasn’t official announced a comeback, so perhaps it is just a media ploy and there really is no intent to begin selling Crystal Pepsi again.

Which got me thinking. Somewhere out there, someone is wondering whether they can start selling Crystal Pepsi before Pepsi does. Pepsi hasn’t sold Crystal Pepsi for over 10 years without any apparent intent to resume use until recently. The facts suggest a plausible basis for a claim of abandonment (a previous DuetsBlog post addressing abandonment is available here). A quick search of the U.S. Trademark Office reveals that Pepsi has abandoned any rights to any registrations or applications. So is our hypothetical user in the clear?

Unfortunately, this is a bad example as Pepsi has not abandoned its rights in its PEPSI mark. But what if it had been a stand-alone brand, like Surge? Would Pepsi still have rights in the trademark even though it hasn’t been used in over ten years? We’ve briefly discussed the concept of persisting recognition (or residual goodwill) in the past. Like most legal questions, the answer is “it depends.”

For purposes of registration, the Trademark Trial and Appeal Board does not recognize the doctrine. In fact, just recently, the Board cancelled a registration for the mark NAUGLES, owned by Del Taco, reasoning that:

Lastly we note that Respondent contends that it holds “considerable goodwill” in the Naugles mark, sufficient to defeat Petitioner’s claim of abandonment. The Board has never found residual goodwill to be a defense to abandonment, and we decline to do so here. The continued existence of enthusiasts of the old Naugles food items does not negate the statutory presumption of abandonment.

In that case, Del Taco claimed that even though it had closed the Naugles restaurants after merging back in the early nineties, that it still had legitimate rights twenty years later. The company claimed that the “History” portion of its website showed continued use, as well as its sale of promotional clothing. Del Taco’s best argument appears to have been that consumers could still order of the “Secret Naugles Menu,” which meant that consumers would request food entrees that were previously offered by Naugles. But not even the secret menu used the Naugles mark, instead, it consisted of orders like “a bun taco” or “egg burrito.” The Board did not find Del Taco’s evidence of use convincing, although maybe the Board informed Del Taco that they might still be eligible for a “Secret Naugles Registration.”

But what about outside the registration context? The Fourth Circuit has suggested that the potential for residual goodwill depends on the product, reasoning that:

Because fire trucks have very long lives (often twenty to thirty years), the mark stays visible, and the good will value of the mark persists long after production of trucks with that mark has ceased. Thus, it might be reasonable for a fire truck manufacturer to spend five or six years considering the reintroduction of a brand, even though the same passage of time would be unreasonable for a maker of a more ephemeral product, say potato chips

Emergency One, Inc. v. Am. FireEagle, Ltd., 228 F.3d 531, 537 (4th Cir. 2000). In contrast, though, a California court found that eight years of non-use of the COBRA mark in connection with cars constituted abandonment. Shelby v. Ford Motor Co., 28 USPQ2d 1471, 1475 (CD Cal. 1993).

Unlike Pepsi’s new/old refreshment, the precedent here is a bit murky. I guess we’ll just have to wait and see Pepsi’s next steps before we move forward with DuetsBlog Crystal Soda.