Published 06 January 2010
By Gary Rice, Beauchamps Solicitors
Pepsi has launched an action in the US against fellow soft drink giant Coca-Cola in relation to the latter’s Powerade sports drink. Pepsi is the owner of Gatorade which has in excess of 75% of the US sports drink market. In order to increase its share of the sports drink market, Coca-Cola sought to develop its product by mimicking fluids lost by athletes during exercise – in other words, sweat. This involved adding calcium and magnesium to the Powerade formula and adjusting the other ingredients so that Powerade contained the electrolytes in approximately the same ratio that the electrolytes are lost in sweat.
Coca-Cola launched an advertising campaign which initially sought to compare Powerade to Gatorade. The billboards and magazine ads directly and indirectly compared Gatorade and Powerade products. Pepsi alleged false advertising, trade mark dilution by tarnishing Gatorade’s image, injury to business reputation and unfair competition. At a preliminary hearing, the US court was not persuaded that the adverts were misleading as they amounted to no more than ‘non-actionable puffery’. The court also refused to grant Pepsi an injunction as it could not be shown that irreparable harm would be done to its reputation and trade mark. The battle of the sports drinks continues.
Article obtained from www.beauchamps.ie, the website of Beauchamps Solicitors. Article reproduced with their kind permission.
For more information, contact Gary Rice
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