IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
In the Matter of Trademark Application Serial No. 77/297,998 For the Mark : CAN DEW Filed : October 6, 2007 ----------------------------------------------------- x PEPSICO, INC. : : Opposer, : : v. : Opposition No. 91187023 : JAY PIRINCCI, : : Applicant. : ----------------------------------------------------- x
DECLARATION OF BRETT O’BRIEN IN SUPPORT OF PEPSICO ’S MOTION FOR SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF LAW
I, Brett O’Brien, declare as follows:
1. I am Vice President Marketing of the MOUNTAIN DEW brand for PepsiCo, Inc. I
submit this declaration and the exhibits attached hereto, which are incorporated herein by
reference, in support of PepsiCo’s Motion for Summary Judgment. I have been
employed by PepsiCo, Inc. since September, 2001. In my capacity as Vice President
Marketing for PepsiCo, I am responsible for the MOUNTAIN DEW and AMP ENERGY
brand marketing. I am personally familiar with PepsiCo’s marketing, advertising,
promotion, sale and use of the marks MOUNTAIN DEW, DEW and variants thereof on
or in connection with beverages, soft drinks and related products and services. I am over
the age of twenty-one, have never been convicted of a crime, and am competent to make
this declaration. This declaration is based on my personal knowledge. In preparing this
NY02:727645.1 2
declaration, I have relied on my personal experience and my review of company
documents.
2. The MOUNTAIN DEW soft drink was created in the 1940’s in Tennessee. Attached
hereto as Exhibit A are true and correct copies of representative screen captures from the
official Mountain Dew web site located at www.mountaindew.com as it appeared in
2011. This website includes an accurate timeline of the brand’s history and
representative examples of PepsiCo’s use of MOUNTAIN DEW, DEW and variants
thereof on cans, bottles and labels for beverages that have been marketed and sold by
PepsiCo throughout the years. (See Ex. A at P001704-1718, P004242-4307.)
3. The MOUNTAIN DEW brand has appeared on cans, bottles and other containers for soft
drinks and concentrates marketed, advertised, promoted and sold to consumers in the
United States throughout the many decades of use. Attached hereto as Exhibit B are true
and correct further examples of bottles and other containers bearing the MOUNTAIN
DEW, DEW and MTN DEW marks, which have been marketed and sold to consumers.
(See also Ex. A at P001704-1718, P004242-4307. )
4. Under PepsiCo, the MOUNTAIN DEW line of products has expanded to encompass
many flavors and different types of beverages in addition to the citrus flavored soft drink
for which it is perhaps most famous. MOUNTAIN DEW beverage flavors have included
MOUNTAIN DEW WHITE OUT, a citrus flavored soda, MOUNTAIN DEW
LIVEWIRE, an orange flavored soda, MOUNTAIN DEW CODE RED, a cherry flavored
soda, MOUNTAIN DEW VOLTAGE, a raspberry flavored soda, and MOUNTAIN
DEW BAJA BLAST, a lime flavored soda, among others. (See Ex. A at P001721-1730.)
NY02:727645.1 3
5. PepsiCo has also offered MOUNTAIN DEW slurpees at 7-Eleven stores.
6. PepsiCo’s MOUNTAIN DEW products compete against a wide variety of beverages in
the marketplace, including soft drinks, drink mixes, and energy drinks. In fact,
MOUNTAIN DEW is often considered to be the original energy drink, predating that
category as it is known today. PepsiCo has also leveraged the brand’s unique heritage in
this space to launch AMP ENERGY, a MOUNTAIN DEW line extension developed for
the energy drink category that is marketed in cans bearing the MOUNTAIN DEW logo.
(See Ex. A at P004296.)
7. PepsiCo also licenses the use of MOUNTAIN DEW, DEW and variants thereof for a
variety of products such as t-shirts, glasses, etc., and uses such marks in connection with
organizing, marketing and promoting various sporting, music and gaming events
consistent with the brand and relevant to its core consumers. Attached hereto as Exhibit C
are true and correct copies of images of representative examples of licensed product
bearing production numbers P001529, P001530, P001534 and P001536. Attached hereto
as Exhibit D is a true and correct copy of an internal presentation regarding a 2007
limited time offer of MOUNTAIN DEW beverages in connection with the release of the
Halo 3 video game bearing production numbers P000923-929. This promotion was
executed as planned and launched in August 2007. (See also Ex. A at P001788,
P001789, P001865, P001891 (sporting events); P001779-1783 (music events and
promotions).)
8. Under its marks MOUNTAIN DEW, DEW and variants thereof, PepsiCo has been a
sponsor of NASCAR racing teams and events for well over twenty (20) years. Attached
NY02:727645.1 4
hereto as Exhibit E is a true and correct copy of a printout from the Mountain Dew web
site as it appeared on January 22, 2009 and bearing production number P000139, and
which accurately reflects the use of the mark MOUNTAIN DEW in connection with such
events since the 1980s.
9. Since 1989 and continuing through 2011, PepsiCo has promoted ski and snowboarding
races such as MOUNTAIN DEW VERTICAL CHALLENGE. Attached hereto as
Exhibit F are true and correct copies of examples of advertising and marketing materials
for such races as they appeared in 2002 and 2008 and bearing production numbers
P000455 and P000449.
10. Beginning in 2005, PepsiCo launched DEW TOUR action sports competitions across the
country. Such competitions have taken place in each of the following years up through
the present, and enjoy national exposure through television broadcasts of the events. (See
Ex. A at P 001865, P 001891.)
11. PepsiCo also has a record label, Green Label Sound, which promotes independent artists
in connection with the MOUNTAIN DEW brand. (See Ex. A at P 001749-1762.)
12. MOUNTAIN DEW is frequently referred to by both consumers and PepsiCo as “DEW”.
In the 1980’s, PepsiCo began making prominent use of DEW as an indication of source.
Since that time, slogans such as “DO THE DEW”, “KEEPING IT COOL WITH DEW”,
“GIVE ME A DEW”, “DEW IT TO IT!”, “DEW IT COUNTRY COOL”, “GET
VERTICAL WITH DEW”, “DO DIET DEW” and “HOW DEW DOES DIET” have
dominated PepsiCo’s MOUNTAIN DEW television ads and promotional materials, point
NY02:727645.1 5
of sale signage, and, in some cases, packaging. (See Ex. A at P 001713-1718, P004251-
4307.)
13. This prominent use of DEW, both as a standalone term and as the base for DEW-
formative marks, which is used on beverages, continues to this day and is well recognized
by consumers.
14. MOUNTAIN DEW is the fourth largest soft drink brand in the country by sales volume,
and has been since at least as early as 1999. In terms of market share, it is surpassed only
by Coke, Pepsi and Diet Coke.
15. PepsiCo’s products marketed under the marks DEW, MOUNTAIN DEW, DIET
MOUNTAIN DEW, MTN DEW and various line extensions are sold in tremendous
quantities throughout the country, generating significant revenue for PepsiCo.
16. From 1990 to 2000, MOUNTAIN DEW was the single fastest growing carbonated soft
drink brand in the country, and, in 2000, MOUNTAIN DEW was the best selling 20 oz.
soda in convenience and grocery stores—significantly outselling both Coke and Pepsi.
Attached hereto as Exhibit G is a true and correct copy of an internal presentation entitled
Prepare to Get Your Swirl On: 2001 Pre-Launch Marketing Plan and Initial Results,
which accurately describes the launch and initial success of MOUNTAIN DEW CODE
RED. (See Ex. G at P000788.)
17. Since then, new products such as MOUNTAIN DEW CODE RED and MOUNTAIN
DEW LIVEWIRE have continued to fuel MOUNTAIN Dew’s growth, and, in 2006,
DIET MOUNTAIN DEW became one of the top 10 carbonated soft drinks in terms of
NY02:727645.1 6
market share; it continues to hold such rankings today. (See Ex. G; see also Ex. A at
P004294.) MOUNTAIN DEW CODE RED and MOUNTAIN DEW LIVEWIRE are
sold to this day.
18. Attached hereto as Exhibit H are true and correct copies of printouts of scan data
collected by the SymphonyIRI Group, a leading market tracking information and insights
firm, and bearing production numbers P000960-961 and P003841. These documents
show periodic and annual sales in terms of volume of units sold and dollars from 2007
through 2011. Sales from January 1, 2007 through September 9, 2007 alone amounted to
over two billion dollars.
19. Such sales figures represent between 60% and 65% of total annual sales of MOUNTAIN
DEW beverages for these years, and do not take into account retailers such as Wal-Mart
(approximately one fifth of PepsiCo’s sales of MOUNTAIN DEW beverages), Sam’s
Club or Costco. The SymphonyIRI data also does not include foodservice sales.
20. PepsiCo markets and sells its MOUNTAIN DEW beverages at grocery and convenience
stores, mass market retailers, drug stores, vending machines and foodservice outlets,
among other outlets. Attached hereto as Exhibit I is true and correct copy of a document
showing a breakdown of sales by retail channel and bearing production numbers
P000962-963. PepsiCo has been selling beverages under or in connection with its marks
MOUNTAIN DEW, DEW and variants thereof through these trade channels for more
than 20 years.
21. MOUNTAIN DEW 20 oz. single serve beverages sell for approximately one to two
dollars apiece.
NY02:727645.1 7
22. Attached hereto as Exhibit J is a true and correct copy of an internal presentation entitled
Trademark Mountain Dew 2009 AOP containing additional information regarding sales
growth from 2005 through 2008 and bearing production numbers P000728-738. For
example, PepsiCo sold over 800 million 8 ounce cases of products under the
MOUNTAIN DEW brand in 2005 and another over 800 million 8 ounce cases in 2006,
alone. (See Ex. J at P000729.) PepsiCo sold hundreds of millions of products in
connection with the marks MOUNTAIN DEW, DEW and variants thereof in each of the
preceding five years before that.
23. Attached hereto as Exhibit K is a true and correct copy of an internal presentation entitled
Performance with a Purpose 2008 and bearing production numbers P000641-666, which
contains additional information regarding sales growth and household penetration during
previous years. (See Ex. K at P000643-645.) In 2005, DIET MOUNTAIN DEW itself
penetrated 10.1 million homes and 11.2 million the following year. Household
penetration of MOUNTAIN DEW products was even higher. (See Ex. K at P000645.)
24. MOUNTAIN DEW is among the most popular soft drinks in the country, and PepsiCo
sells billions of dollar of product each year under the marks MOUNTAIN DEW, DEW
and variants thereof, and has done so for many years prior to the filing date of the
application at issue. Even in the 1980’s and 1990’s, sales were in the hundreds of
millions of dollars.
25. Domestic sales of products sold under the marks MOUNTAIN DEW, DEW, variants
thereof and assorted line extensions have exceeded $5 billion annually since 2004, and
have exceeded $6 billion annually since 2009.
NY02:727645.1 8
26. Attached hereto as Exhibit L is a true and correct copy of a chart showing PepsiCo’s
annual spend on media buys and bearing production numbers P004125-4128. PepsiCo
typically spends an equal amount each year on digital/Internet promotions, grassroots
events, point of sale materials, etc.
27. PepsiCo has invested and continues to invest many millions of dollars in advertising and
promoting its MOUNTAIN DEW brand each year. From 1998 through 2009, PepsiCo
expended, on average, over $50 million each year promoting products sold under the
marks. (See Ex. L.) Approximately half that budget went towards media buys for
television, radio and print advertisements. The remainder went towards digital/Internet
promotions, grassroots events, point of sale materials, etc.
28. PepsiCo has a long history of launching iconic advertising campaigns in support of its
MOUNTAIN DEW brand. In the 1960’s, PepsiCo created the Willie the Hillbilly
character and launched the “Ya-Hoo Mountain Dew. It’ll tickle yore innards.” campaign.
That campaign complemented the production of over 900 different bottles of
MOUNTAIN DEW from 1954 until the late 1960’s. (See Ex. A at P001710, P004242-
4244.)
29. The bottles and paraphernalia from that period are now sought-after collectors’ items,
and, in recent years, the original 1964 commercial has enjoyed over 200,000 hits on
YouTube.
30. Sunshine was a recurring theme in 1970’s MOUNTAIN DEW advertising. Television
ads touted the slogan “Hello, sunshine. Hello, Mountain Dew.” One can design from the
period carried the phrase “Hello sunshine”, and, to this day, PepsiCo licenses the “Hello,
NY02:727645.1 9
sunshine. Hello, Mountain Dew.” slogan from that campaign for use on t-shirts. (See Ex.
A at P 001712, P 004249-4250.)
31. In 2004, PepsiCo launched its award-winning Spy v. Spy ads featuring the famous Mad
Magazine characters. Included herewith as Exhibit M is a DVD containing true and
correct copies of representative commercials from 2004 through 2009 and bearing
production number P001538. (See Ex. M at commercials 4-8.)
32. In 2007, PepsiCo promoted its first DEWMOCRACY campaign in which consumers
voted for the flavor they wanted to see released. Attached hereto as Exhibit N are true
and correct copies of two internal presentations regarding the DEWMOCRACY
campaign and bearing production numbers P000898-922. (See also Ex. M at commercial
40.) The campaign was implemented as described in the presentations.
33. PepsiCo’s television commercials air nationwide and reach hundreds of millions of
viewers. Over the years, its commercials have aired many times a day on networks such
as ABC, NBC, Fox, BET, MTV, MTV 2, ESPN 2, Spike, Fuse, G4, etc., often airing
multiple times during the same program. See Ex. M. Attached hereto as Exhibit O are
true and correct copies of representative pages from spreadsheets from 2004 through
2009, which contain information on the total numbers of times each commercial aired on
which network.
34. PepsiCo frequently partners with celebrities to market its MOUNTAIN DEW beverages.
For example, PepsiCo’s MOUNTAIN DEW television commercials have featured actors
Steven Seagal, Chuck Norris and Rick Gonzalez, and professional athletes Tracy
McGrady, Kasey Kahne, Shaun White and Hannah Teter. (See Ex. M.)
NY02:727645.1 10
35. PepsiCo also owns and operates a web site at MOUNTAINDEW.COM through which
PepsiCo has been continuously advertising, marketing and promoting the brand and
PepsiCo’s beverage products under the marks MOUNTAIN DEW, DEW and variants
thereof since 1998 up through this day. (See Ex. A; see also Ex. E.)
36. PepsiCo also operates a YouTube Channel and a Facebook page for the same purpose,
which, since their activations in 2006 and 2008, respectively, have generated significant
daily exposure for the brand.
37. PepsiCo further promotes its MOUNTAIN DEW products with point of sale materials
and packaging designs. Over the years, MOUNTAIN DEW packaging has evolved and
has featured an array of distinct artistic treatments. (See, e.g., Ex. A at P004244,
P004305, P004307, P001762.) These products were produced, marketed and sold to
consumers.
38. For example, in 2007, PepsiCo began releasing sets of limited edition bottle designs,
some of which have had nationwide distribution. Attached hereto as Exhibit P is a true
and correct copy of an internal presentation entitled MOUNTAIN DEW 2008 Update:
Principals Meeting and bearing production numbers P000667-699. (See Ex. P at
P000680-682.)
39. PepsiCo also owns and operates GREENLABELART.COM, a web site used specifically
to promote its Limited Edition Artist Series cans. (See Ex. A at P001749-1762.)
NY02:727645.1 11
40. What has remained consistent since the brand’s inception is the prominent use of
MOUNTAIN DEW, DEW and variants thereof. (See, e.g., Ex. A at P001704-1718,
P004242-4307.
41. PepsiCo’s MOUNTAIN DEW brand has received considerable recognition from the
public for many years prior to the filing of the application at issue. More recently, and by
way of example, as part of a 2009 study entitled Brand Health Tracking Quarterly
Management Report: Q2 2009 - Mt. Dew by Millward Brown, an independent global
research agency, frequent drinkers of regular flavored carbonated beverages were asked,
“Thinking about carbonated soft drinks, please type all brands of carbonated soft drinks
you can think of in the boxes below.” 51% listed MOUNTAIN DEW as one of their
answers without any prompting. Aided awareness rates in that same study reached 98%.
92% of participants had at least tried MOUNTAIN DEW; 46% said they drank it
regularly. Attached hereto as Exhibit Q is a true and correct copy of this study bearing
production numbers P000833-849.
42. The results of this study are comparable to those previously conducted, and to a later
study conducted in 2010. Attached hereto as Exhibit R is a true and correct copy of the
2010 study entitled NAB Brand Health Quarterly Scorecard Report bearing production
numbers P004129-4136.
43. PepsiCo’s MOUNTAIN DEW brand also receives a significant amount of press
coverage, and has received such press coverage since long before the filing of the
application at issue. Attached hereto an Exhibit S is a true and correct copy of a
representative example of such coverage bearing production numbers P001925-1926.
Exhibit B
P 000198
P 000426
P 000182
P 000244
P 000250
P 000313
P 000274
P 000257
P 000375
Exhibit C
Exhibit D (Filed Under Seal)
Exhibit E
Page 1 of 1MountainDew.com: MOUNTAIN DEW RACING
1/22/2009http://www.mountaindew.com/
P 000139
Exhibit F
P 000455
P 000449
Exhibit G (Filed Under Seal)
Exhibit H (Filed Under Seal)
Exhibit I (Filed Under Seal)
Exhibit J (Filed Under Seal)
Exhibit K (Filed Under Seal)
Exhibit L (Filed Under Seal)
DVD Bates Stamped P 001538
Exhibit N (Filed Under Seal)
Exhibit O (Filed Under Seal)
Exhibit P (Filed Under Seal)
Exhibit Q (Filed Under Seal)
Exhibit R (Filed Under Seal)
Exhibit S
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Bigger Splash Planned for a Niche Citrus Soda
By VALERIE BAUERLEIN
Ninteen-year-old Levi Moody hauled eight cases of Sun Drop citrus soda from the Carolinas to Oklahoma State
University in August so he'd have enough to last the semester.
He's had to ration himself to two cans a day to make the 192 cans
last until the holiday break. "I can't tell you why I love it so much
but I do," he says.
Next semester, he may be able to buy it near campus. Dr Pepper
Snapple Group Inc. plans to start selling Sun Drop nationwide
early next year.
Sun Drop—which has been around since 1928—has a rabid
following in the handful of mainly Southern states where it's
currently sold. The drink was once pitched by the Nas car legend
Dale Earnhardt. Families have shipped it off to soldiers serving
in Afghanistan; fans swap recipes for holiday turkey with Sun
Drop glaze. Made with orange juice and packing more caffeine
than Mountain Dew, it is sometimes used as a mixer with hard
liquor.
Its expansion is part of Dr Pepper Snapple's strategy to fortify consumer interest in flavored sodas, a non-cola
segment of the soft drink industry in which the company specializes. Cola sales have fallen to 55.4% of the U.S.
soda market in 2009 from 60.5% in 1999, according to Beverage Digest, an industry publication. At the same
time, sales of Dr Pepper, Crush, and other brands Dr Pepper Snapple owns have grown.
"The American palate has changed," said Jim
Trebilcock, chief marketing officer at Dr
Pepper Snapple. "If you look at media and
other things, there's so much variety out
there, it drives a bit of willingness to try
different things."
Nathan Pearson of Fallston, N.C., said he
buys a two-liter bottle of Sun Drop each
morning to drink over the course of each day.
It's the only soda the 22-year-old military
trainee drinks. "Warm, cold, it doesn't
matter," he said.
Landov
Independent bottlers like this one in Wisconsin will continue to bottle Sun Drop as Dr Pepper Snapple rolls out expanded distribution of the brand.
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Page 1 of 2Dr Pepper Snapple to Expand Sun Drop Soda - WSJ.com#printMode
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Sun Drop's owner is taking direct aim at
Mountain Dew, the fourth-most popular soda
in the U.S. after Coca-Cola, Pepsi-Cola and
Diet Coke.
Mountain Dew dominates the "citrus"
category with an 84.3% share, heavily
marketed by PepsiCo Inc. to teens through
sponsorships of extreme sports and through
advertising that's embedded into videogames.
Mountain Dew's volume slipped 3.5% last
year. (The citrus category doesn't include 7Up
or Sprite, which the beverage industry
classifies as lemon-lime. Orange sodas also
are a separate category.)
To reach Sun Drop's target market of 15- to 17
-year-olds, Dr Pepper Snapple developed a
revenue-sharing agreement with Viacom
Inc.'s MTV network. MTV's new Scratch marketing arm has designed the drink's advertising and image, down to
a redesign of the can that will be appear in January. The network also will feature Sun Drop in MTV
programming, including reality shows such as "The Real World." Dr Pepper Snapple and MTV wouldn't say how
they plan to divide revenue, saying only that it is based on sales volume.
The collaboration with MTV began in June 2009 when the network, which had a long-running advertising
relationship with Dr Pepper, asked Mr. Trebilcock for a shot at turning around one of his lesser brand names. The
company offered up Hires Root Beer, RC Cola and Mistic juices, but MTV latched on to Sun Drop after a quick
taste test on the streets of New York. Consumers thought the drink was refreshing and bright, said Ross Martin,
MTV Scratch's executive vice president.
Dr Pepper Snapple of Plano, Texas, is a distant third in beverage sales volume to Coca-Cola Co. and PepsiCo. But
its shares have outperformed its larger peers since the May 2008 spinoff from Cadbury PLC.
Mr. Trebilcock said the company spent the past two years focusing on its core brands such as Dr Pepper, Snapple,
7Up and Mott's juices. Now Mr. Trebilcock said the company is digging deeper into its portfolio to revitalize some
of its 50-plus brands, including Sun Drop.
Some analysts have cooled to Dr Pepper Snapple shares, saying the company has improved operations but has
little prospect for growth, since the company long ago sold the rights to its brands internationally. In New York
Stock Exchange composite trading Wednesday, Dr Pepper Snapple shares were off 14 cents to $36.59.
The company said it sees potential nonetheless in the growing appetite for its flavored drinks. "Let's face it," Mr.
Trebilcock said. "Carbonated soft drinks is a pretty stagnant, slightly declining category. But we're growing
volumes and gaining share. It's because we try to create differentiation."
