SportFuel sued Pepico and The Gatorade Company asserting that Gatorade’s use of Sports Fuel infringed its SportFuel trademark. The Seventh Circuit found Gatorade’s use of Sports Fuel was not infringing because Gatorade’s use was a descriptive use.
It appears that Gatorade used Sports Fuel in “GATORADE THE SPORTS FUEL COMPANY.” The court’s opinion provided this image of Gatorade’s use of Sports Fuel.
In finding Gatorade’s use of Sports Fuel descriptive, the court said “It requires no imaginative leap to understand that a company selling ‘Sports Fuel’ is selling a variety of food products designed for athletes.”
Is “fuel” so directly and immediately descriptive of food? I’m not so sure. Without considering market use, I think that fuel could be suggestive rather that descriptive of food or drinks. Other factors such as the alleged third party use and the manner of use in the slogan probably played a larger roll in the court’s conclusion that the use was descriptive.
Cite: SportFuel, Inc. v. PepsiCo, Inc., No. 18-3010 (7th Cir. Aug. 2, 2019).