Not a phrase one expects to type very often, but here we are: This is a fascinating piece of news concerning trademark disputes!
A Tennessee distillery has been locked in a trademark battle with PepsiCo since 2016, when the big ol’ food-and-beverage behemoth filed a Notice Of Opposition to Ole Smoky Moonshine’s 2015 request to trademark “Old Smoky Mountain Dew Moonshine.” There’s a lot more about the origins of that battle in this ABC News story, including how Old Smoky acquired the name from a guy who inherited it from his ancestor, who as the head of Green River Distilling had been using the term since the 1890s. But that’s not the news. The news, as reported by ABC News and The Spirits Business, is that this week, Ole Smoky filed a motion that instead would grant all distilleries the right to use the phrase. The reason: Mountain Dew may be an electric-green sugar-and-caffeine elixir, but mountain dew is just plain old whiskey.
The reasoning behind this, legally, is that the distillery would “not need to argue it has acquired exclusive rights in MOUNTAIN DEW for distilled spirits.” So this is absolutely an act of self-interest. But it also has a certain logic. Joe Baker, the founder of Ole Smoky, told ABC News that the decision was made after hearing from others in the alcohol industry, saying, “we’ve decided to try to move to establish the term as a descriptive and general term for what moonshine is.”
A 1907 court case centered on the use of the term “Mountain Dew,” conducted well before the development of the terrifyingly green soda pop (which clomped into the world like a radioactive monster in the 1940s), said that it was “a matter of common knowledge that the term ‘Mountain dew’ means whiskey,” and goes on to specifically cite its use as a name for both Highland scotch and “Illicitly-distilled whiskey; so called from being very commonly made among the mountains.” So that’s moonshine.
Pepsi, of course, says, “nah.” As a PepsiCo spokesperson told ABC in January:
“Mountain Dew is one of the world’s most iconic and recognized brands, and has been since it was established more than 70 years ago,” a spokesperson for PepsiCo’s Mountain Dew said in a statement to ABC News. “The planned unauthorized use of Mountain Dew by another party violates PepsiCo’s trademark rights, and we must vigorously protect our brand.”
It’s an interesting dispute. If, in 100 years, the term “hot dog” had fallen out of use, and we were now mostly calling them “sausages,” or “meat tubes” or something, and a giant corporation decided to name some other branded food item “Hot Dog,” would the companies who make hot dogs still be able to call them hot dogs? I’m not sure. But Pepsi is right that Mountain Dew as a term is now more commonly associated with a carbonated day-glo liquid, and Ole Smoky is right that “mountain dew” is actually defined as moonshine. So, interesting.