June 9, 2017
Authored by: BCLP, Eric Schroeder, Steven Alagna and Nick Williamson
While the mythical unicorn is a rare creature, it has recently become a marketing phenomenon, with the unicorn’s rainbow-laden powers being harnessed to sell unicorn-themed products that can cover you from literally head to toe, i.e., from makeup (such as “Unicorn Snot®”, a glitter gel) to slippers and even a toilet spray made with “unicorn farts” (Squatty Potty’s “Unicorn Gold®”). Perhaps inevitably, brand owners have begun to battle over who can lay claim to a unicorn trademark. And this includes drinks that sound like coffee (but largely are not).
In April, caffeine aficionados found it was nearly impossible to avoid Starbucks’ limited-time promotion of its Unicorn Frappuccino. Purple and turquoise, and made of créme frappuccino syrup, milk, ice, mango syrup and “whipped cream-sprinkled pink and blue fairy powders,” the reportedly coffee-less drink was heavily promoted. One Brooklyn-based coffee and juice bar, however, was not enchanted by Starbucks’ frappe.
The End and its owner, Montauk Juice Factory, Inc., filed a trademark-infringement suit against Starbucks on May 3, 2017. According to the complaint, The End started selling a “Unicorn Latte™” in December 2016, before Starbucks launched its Unicorn Frappuccino. According to its complaint, The End’s “Unicorn Latte™” spawned its own social media following due to its colorful appearance and “magical” qualities of its super-food ingredients. Montauk Juice’s federal trademark application pre-dated Starbucks’ Unicorn Frappuccino launch by several months.
The complaint further alleges that once Starbucks launched its Unicorn Frappuccino in April, confused customers both (1) began calling it a “Unicorn Latte,”