‘Freekin Soda’ didn’t please the regulators, and ‘Freekee soda’ has now been dropped by Britvic as well. For our thoughts on what might have gone on behind the scenes and the lessons.
Who: Britvic Soft Drinks
When: August 2003
It has not been easy for Britvic's juice and milk-based soft drink originally called Freekin Soda.
The Freekin Soda moniker had to be dropped over concerns at the sexual connotations of the word 'Freekin' among the teen target market. The product was then re-branded and launched under the name 'Freekee Soda'. All seemed set fair and Britvic was claiming the product had achieved 81% awareness among kids. But there was more brand trouble and the product has now been re-branded yet again, this time as 'Tango Strange Soda'. Reports suggest that the second name change was due to a legal challenge from an unnamed company. Britvic themselves refused to comment, but a quick search of the UK Patent Office's online trade mark register gives some indication of what the true story might have been.
In November 2002, Britvic filed an application to register the brand name 'Freekee Soda' as a trade mark in the UK. The goods class was 32 covering non-alcoholic drinks; cordials; squashes; carbonated non-alcoholic drinks; mineral and aerated waters; fruit drinks and fruit juices, syrups, granules, powders and other preparations for making beverages.
In accordance with the rules, the application to register was published in the Trade Marks Journal on 14 February 2003. There was then three months for any other brand owner who was directly concerned to file an opposition to the registration going ahead. This was exactly what happened. We do not have chapter and verse on the opposer, but a search of the Community Trade Mark Register suggests at least one strong candidate.
The 'Community Trade Mark' ('CTM') is a 'one stop' means of registering a trade mark across all fifteen states of the European Union. If, after filing an application for a CTM, it turns out that the same mark is the subject of a registration already in a single EU state, then the CTM application cannot proceed. However, it will still be open to the brand owner to seek individual registrations in other EU states.
In this instance, the CTM register showed that on 25 February 2003, just a couple of weeks after the appearance of the Trade Marks Journal publicising Britvic's Freekee Soda application in the UK, a Spanish company by the name of Key Enterprises SL filed an application for a CTM to protect the trade mark Freekee. The product classes were 30 and 32.
That application is still pending, but under three months later Britvic themselves filed an application to register a CTM. The brand was Freekee Sodda and the product classes were 29, 30 and 32.
It must have been clear to Britvic at the time they filed their CTM application that this could only succeed if the earlier, Key Enterprises application failed. For their part, it may be that Key Enterprises, having lodged their opposition to Britvic's UK application to register Freekee Soda, dug their heels in for a long fight. What has actually happened since the three trade mark applications were filed we may never know, but at the end of the day, Britvic has decided to throw in the towel and withdraw its Freekee Soda UK trade mark application.
Why this matters:
Why did Britvic only file an application to register Freekee Soda in the UK in November 2002, when they could have filed a CTM application? Why was it only five months later, by which time Key Enterprises of Spain had put a spoke in Britvic's wheel by filing their own application to register Freekee, that Britvic filed its own CTM application? One suspects that there is much more to this story than meets the eye, but in any event the saga underlines the importance of forward planning when contemplating trade mark protection strategies, as well as comprehensive searching.