‘Dirty soda’ legal battle resumes

Posted at 11:30 AM, Feb 15, 2017
and last updated 2017-02-15 13:30:58-05

SALT LAKE CITY — The legal battle over “dirty sodas” in Utah has picked back up.

In a court filing obtained by FOX 13, Swig Holdings LLC attorney Mark Bettilyon announced settlement talks with Sodalicious had not been successful, and the company was planning to file an amended lawsuit. The court filing asked the federal judge overseeing the case to grant the request.

“Unfortunately, the parties were unable to reach a resolution and are now on track to file an amended scheduling order and complete the balance of discovery,” Bettilyon wrote.

He wrote that in an August deposition, Sodalicious’ representative said it had “rebranded” its stores with new menu boards.

“During this deposition, Swig also learned that Sodalicious stopped using the term ‘dirty’ to describe its flavored sodas in May 2016, after the amendment deadline. But Sodalicious also admitted that it continues to use the term ‘extra dirty’ and that its use of ‘extra dirty’ has resulted in brand recognition for Sodalicious,” Bettilyon said in the court filing.

“Sodalicious also admitted that its use of ‘extra dirty’ helps its overall brand ‘because it worked with the names of our drinks [b]ecause it’s fun to say, Your Mom Extra Dirty or a Second Wife Extra Dirty or a Boy Scout Extra Dirty.’ Sodalicious also acknowledged for the first time that its use of ‘extra dirty’ to describe some of its drinks is meant to be ‘entertainment’ and ‘part of the [Sodalicious] experience.'”

Swig filed a trademark infringement lawsuit against Sodalicious last year, accusing it of improperly using the term “dirty” to describe the flavored sodas that have become very popular in Utah. It also accused Sodalicious of copying its look and business model.

Sodalicious has counter-sued, pointing out that other soda shops in Utah use the word “dirty.”