There have been all sorts of David and Goliath legal battles. McDonald's are familiar with the workings of the courts in this regard, whether because of defamation or the borrowing of the name, if just the Mc (aka Mac) part. Some of these battles can seem petty - Goliath throwing his weight around because he can do. Others are less so. David can try it on, and David knows that he's been trying it on. There is property to be defended - intellectual, industrial. There is reputation, name and image to be upheld. There is the inherent value of the brand to be maintained, one that has been acquired over many a long year. David can come along and try borrowing some of that value. This is one reason why PepsiCo challenged Lemon Factory's Pep name.
To explain, as explanation may be needed. Lemon Factory started up some three years ago. Here was everything that the Balearic government (certainly as now is) would love. A sort of artisan lemonade maker. There were already artisan microbreweries, so why not lemonade as well, and a product that might even be destined for rather greater sales than the artisan beers? Splendid idea, splendid product. What was there not to like?
Well, PepsiCo, via its Spanish division, didn't like. Pep and Pep, you see. Of course, as everyone knows (mostly everyone) Pep is a very common name - short for Josep. Mallorca is not short of Peps. They are everywhere. So the Pep brand name was just a reflection of a name. Wasn't it? As far as Pepsi was concerned, it was indeed a reflection of a name: its name. In court its lawyers argued, among other things, that Lemon Factory was and would be benefiting from all those decades of brand value and rivalry with another maker of cola.
It was probably cola that really did it. The original product was Pep Lemon. But then came Pep Cola. When it first appeared, I thought that they, Lemon Factory, couldn't be serious. Was it a kind of affectionate joke? Notwithstanding the accent, the missing "si" suggested so. Not, it has to be said, that there was great room for confusion in the eyes (or perhaps) ears of the consumer. For a kick-off the labelling is totally different. There is absolutely no possibility of confusion.
Pepsi, however, suggested that there was a possibility. M'learned friends at the Balearic High Court have been inclined to agree. Sorry, not inclined; have agreed. These same learned friends were likewise disinclined to go along with the pronunciation line of defence, which has to do with the "e" in the competing Peps being pronounced differently. The court had thus committed a serious linguistic error, and Lemon Factory has hauled in linguistics experts to explain why. One e is closed, the other e is open. No room for confusion, even if the letters are arranged in the same order.
Lemon Factory, instructed to drop the Pep name, is not giving up the fight. It's going to the Supreme Court, where m'learned friends may be even less aware of the nuance of Mallorquin/Catalan pronunciation. Doubtless they will be made to listen to tape recordings of Pep and Pep(si). It's all a bit, I suppose, like the court having to decide if Jimmy Page had nicked Randy California's riff and come up with "Stairway To Heaven".
It's all a shame. Here is a business that deserves to succeed. It has a good product. But the phonetic argument sounds (as it were) somewhat farfetched. There may be a legitimate reason for raising it, but especially where Pep Cola is concerned, the names are too alike.
The Balearic government (as now is) has stepped in. Or at least Més has stepped in. Parliamentary spokesperson David Abril was swigging a bottle of Pep Lemon as he announced that there will be a proposal to make brands - made in Mallorca - capable of being defended by the government. Whatever that is supposed to entail. There was, unsurprisingly, the subtext of Goliath multinational beating up David artisan lemonade maker with products that are respectful of the environment and so therefore in keeping with principles of sustainability, etc, etc.
Pepsi do have a point, though. Even so, might it not have been possible to arrive at a solution other than demand that the Pep name is abandoned completely? Would dropping Pep Cola not be a way? With the other ones - Pep Lemon, Pep Orange, Pep Toni - the potential for any confusion is minimal, if at all, while the labelling says it all, however Pep is spoken: a totally different product.
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