Aspartame is back--and is Pepsi playing by a new branding playbook?

As trademark attorneys, we have an ambivalent relationship regarding generic terms. On the one hand, we are trained to warn our clients against

such marks because they fail the basic function of a trademark, namely as a source identifier of a good or service. However, because most clients for marketing purposes prefer a mark that bears some connection to the goods or services, we are called upon to seek registration of marks that are, if not generic, arguably descriptive. After all, from the client’s perspective, what can be better than registering a mark that straddles the descriptive/non-descriptive divide, thereby providing the trademark owner with an asset that has the potential to exclude others from using similarly descriptive terms. Guest Kat Emma Perot recently discussed an example of this, namely the dispute between Coca-Cola and RC Cola before the USPTO over the registrability of the world “ZERO” in various combinations. Seen from this perspective, trademark strategy is about how to game this descriptive/non-descriptive divide for the client’s benefit.

Nevertheless, it turns out that trademark strategy may sometimes be better viewed as the use of generic (or nearly so) terms without any apparent interest in whether or not they meet the requirements for registration. Case in point is the announcement last week by PepsiCo, as reported here, regarding changes to its soft drink line-up and the names assigned to these products. At the heart of these moves by Pepsi is the presence or absence of the artificial sweetener, aspartame. While used for a long time, aspartame has been challenged on various health grounds, so much so that in 2015 Pepsi removed it from the formulation for its Diet Pepsi soft drink product, in favor of sucralose. Pepsi thereby hoped to capture customers who are wary for health reasons of products containing aspartame. The problem is that the removal of aspartame from the Diet Pepsi soft drink did not blunt the continuing decline in sales. The solution—bring back the diet version with the aspartame ingredient.

But how to signal to customers of this change (set for September 2016)? The answer seems to be, not by adopting a mark that meets the traditional function of signaling the source of the product, but rather by adopting a wholly and unabashedly descriptive addition to Diet Pepsi-- “Diet Pepsi Classic Sweetener Blend.” It seems that Diet Pepsi (i.e., the non-aspartame diet drink version) will continue to be called Diet Pepsi. Moreover, the Pepsi soft drink product known as Pepsi MAX will have its name changed to “Pepsi Zero Sugar” and it will retain aspartame as an ingredient. Unlike the ambiguity regarding the ZERO mark on this point, in the case of Pepsi, there should not be any doubt about the nature of this product—it contains no sugar and presumably, no calories.

So what do we make of this? The official line from Pepsi, as reported, takes the position that –

“[c]ustomers want choice in diet colas, so we’re refreshing our U.S. lineup to provide three options that meet differing needs and taste preferences.”

But in so doing, Pepsi seems to be creating a new play book on soft drink branding. Brands are typically about creating short-hand ways of bonding the customer with the product via a mark. Consumers are not really accustomed to bonding to a name, the key part of which is a highly descriptive phrase such as “classic sweetener blend” or “zero sugar” (even if such product name also contains the word Pepsi). Somehow, this Kat thinks that advertisements for these new product names will fall flat on their face. After all, I just want to be able to continue to buy my Pepsi MAX. I’m sorry, I meant Pepsi Zero Sugar. Ugh.

Lest Kat readers think that this Kat is being a curmudgeon about all of this, he is not alone. Consider the words of blogger Bob James, who writes about these proposed changes as follows—

“Personally, I think all the changes in product names are part of the problem. We’re creatures of habit. We grab what we know is our favorite and we’re always in a hurry. So, when I look at a product on the shelves and don’t automatically know what it is, I’m not going to take time to study or buy it.”

Pepsi better hope that Mr. James is wrong.