In a recent article in the New York Times, they shone a light on a brewing battle between two titans of bespoke soda combinations in Utah. Swig was the first company in business, but Sodalicious is a tenacious competitor. Due to this competition, Swig has sued Sodalicious for infringement on trademarks and trade dress including:
- A logo that is too similar
- Using the word "dirty" to refer to a soda with a coconut mix-in
- Serving cold sugar cookies with room-temperature frosting
- Serving beverages in styrofoam cups
There is anecdotal evidence that this tactic is hurting Swig by making them look like a bully because they're asserting trade dress and trademark issues that are clearly not proprietary.
If Kevin O'Leary was to talk to Swig on Shark Tank, he would ask them what there is to stop him from starting his own flavored soda business serving cold cookies to crush them like the cockroaches they are. He's right, there's nothing to stop him. What should Swig do?
When your business is faced with a tenacious competitor, instead of reverting to the courts to protect marginal features that shouldn't be considered trade dress or trademark, double down on serving your customers. Surprise and delight them every day so that they want to return again and again.
Focus on aspects of your business that may be pain points and spend your time innovating there so that your customers feel compelled to tell their friends and neighbors about your amazing company.