Pom Lowers the Boom on Energy Drink

     SALT LAKE CITY (CN) – Pom Wonderful, which defends its trademark fiercely, wants Backside Beverages ordered to stop selling its “Pompis” energy drink. Pom claims Pompis is Spanish slang for “butt,” which denigrates the Pom trademark, and that the second syllable is phonetically equivalent to “piss.”
     Pom Wonderful, which has sued at least a dozen other companies on trademark claims, sued Dallas-based Backside Beverages in Federal Court.
     Mincing no words, Pom claims: “Defendant tarnishes the Pom marks because ‘pompis’ is a slang Spanish term for ‘backside,’ that is, the ‘backside’ of a person. In English, ‘pompis’ is equally derogatory, combining the term Pom and the term ‘pis’ which phonetically sounds like ‘piss’.”
     (The Velázquez Spanish Dictionary contains no entry for “pompis,” and defines “pompa” as “pomp,” with no scatological reference. However, Spanish Spanish is not as rich in scatology as Latin American Spanish, and “pompas” is used to refer to the butt in Latin American Spanish, though one fluent speaker of the language denied this morning ever hearing the precise term “pompis” used.)
     Pom also claims that Backside’s used of the term is tarnishing Pom’s “health-focused” brand because “studies have shown that energy drinks are not healthful because of their high sugar and caffeine content.”
     (Pom Wonderful sued the Federal Trade Commission in September 2010, challenging an alleged “new standard” by which the FTC said it would determine whether food and diet supplement-makers engaged in deceptive advertising.)
     Pom also objects to Backside Beverages’ label.
     “Defendant’s use of Pom, in combination with a design in lieu of the letter ‘o’ in ‘pom,’ as Pom does, creates a likelihood of confusion, mistake, and deception as to defendant’s affiliation, connection, and/or association with POM among consumers and the trade,” the complaint states.
     Pom says it has spent more than $300 million promoting its trademark since 2001, and has sold more than 150 million bottles of pomegranate juice in the United States since 2002. In 2010 alone, it spent more than $13 million on advertising in the United States, Canada, France the United Kingdom and the Netherlands, according to its complaint.
     Pom Wonderful seeks damages for lost profits and punitive damages for willful trademark infringement and dilution and unfair competition; it wants all the Pompis bottles destroyed, and it wants Backside enjoined from using or advertising the mark.
     It is represented by Stephen Christensen with Van Cott, Bagley, Cornwall & McCarthy.

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