It may be because I attended her concert last weekend, but a new trademark lawsuit brought by the owner of the GATORADE mark made me think of Taylor Swift. One of her popular songs, “Shake it Off” has a chorus that says, “Haters gonna hate hate hate.” (I digress, but Ms. Swift has been involved in her own trademark disputes, discussed here and here.)
The lawsuit I was reading about involved allegations against Active Sports Distribution and DuraCap Labs LLC, who had named their supplement “HATERADE.” The owner of the GATORADE mark, Stokely-Van Camp, Inc. (“Stokley-Van Camp”), is hating this mark, alleging that the GATORADE mark is being damaged. In its complaint, Stokely-Van Camp brought claims for dilution of a famous mark, trademark infringement, false designation of origin, violation of the Illinois Deceptive Trade Practices Act, unfair competition and even breach of contract (based on an alleged prior agreement between the parties – this is not the first go-around).
Stokley-Van Camp manufactures, markets, distributes and sells a variety of food, beverage and nutritional products, including the popular GATORADE sports drink. One of Stokley-Van Camp’s claims is that the “HATERADE” maker is diluting its famous GATORADE mark and its family of GATORADE marks. Fame is a difficult bar to establish. Do you think Stokley-Van Camp can prove the GATORADE mark is famous? I am thinking yes (and not just because, as a football fan, I have seen many coaches on national TV doused in GATORADE to celebrate a win). Stokley-Van Camp goes on to allege that “the term ‘hater’ is a derogatory term used colloquially to refer to a person or group who expresses hatred . . . a negative critical person.” This is contrary to GATORADE and the family of GATORADE marks that are associated with a “positive, energetic and healthy image.”
To establish its fame, Stokley-Van Camp asserted that it devoted tremendous resources, time and effort, including millions of dollars, to marketing, promoting and distributing the popular drink. It alleges that there is enormous goodwill and recognition in the GATORADE brand, which has been featured among the top ten brands of Forbes magazine’s list of “The Most Valuable Brands in Sports.”
In addition, “HATERADE” includes a lightning bolt on its label. This is only fueling Stokley-Van Camp’s hatred because GATORADE also has a lightning bolt on its label. Further, the company owns registrations for GATORADE that include lightning bolt designs.
The makers of HATERADE have not responded yet. We will have to see how this one comes out and if the “Haters” prevail.