CSU Law Students Take on ‘Cocaine’ in Trademark Case

Five law students and their professor at Cleveland-Marshall College of Law are opposing the trademark “Cocaine” for a high-caffeine, high-sugar energy drink that is being marketed to young people.

A Las Vegas company, Redux Beverages LLC, and its co-founder, James Kirby, are using Cocaine as the name for their new soft drink, which is being sold at bars and stores, mostly in New York and California.

On behalf of the Progressive Intellectual Property Law Association and Americans for Drug Free Youth Inc., the Cleveland State University students opposed the soft drink trademark Tuesday on the grounds that it is immoral and scandalous, which is against federal statute.

Since its September launch, Cocaine has raised the hackles of anti-drug groups because the drink is being touted as “the legal alternative” to cocaine, the illegal drug.

Redux promotes its carbonated beverage at a site on MySpace, the popular social networking Web site for teenag-ers.

If its trademark application is granted, other soft drink companies could not use the Cocaine name for their prod-ucts. If not, Redux could still use the Cocaine name, but so could competitors.

Kirby filed his trademark application in March, according to the U.S. Patent and Trademark Office. The application was reviewed and given preliminary approval by a staff attorney.

On Tuesday, the USPTO published the trademark application in its weekly gazette. The public has 30 days to op-pose published trademarks. If unopposed, the marks are granted.

Second-year law students Matthew Delaney, Jessica Fajfar, Angela Simmons, Irina Vinogradsky and Mike Wen-dolowski were ready. Under the direction of their professor, Mickey Davis, the students spent the past 10 days writing an “opposition” to the Cocaine trademark.

The students and their professor filed the opposition with the Trademark Trial and Appeal Board on Tuesday.

The opposition process began about two weeks ago, after Davis mentioned the trademarked Cocaine perfume dur-ing an intellectual property lecture.

“Right after class, I was reading the news, and it popped right off the page: Cocaine energy drink,” said Delaney, one of the students.

“I couldn’t believe that we had just got done talking about it. So I forwarded it to Professor Davis,” Delaney said.

“In the next class it became a big deal,” said Simmons, another student in the class. Five students volunteered to challenge the Cocaine drink trademark.

Why?

“I’m a parent of teenagers. It really bothers me, the idea of there being a drink called cocaine,” Simmons said. “Plus, it’s in a field I’m interested in.”

Cocaine is OK to be applied to a perfume, Delaney said. “But when you start looking at a consumable product that they’re marketing to mainly children and young adults,” the connection to the illegal drug is clear.

Vinogradsky, also a parent, signed on because she strongly disagrees with the use of the name for a soft drink. She recruited the Russian American Medical Association, which is based in Willoughby, to pay the opposition filing fee of $300.

Redux and Kirby have 40 days to respond to the opposition, Davis said. Neither Kirby nor his company returned e-mails and a phone call seeking response Tuesday.

It’s unusual for organizations to claim harm from a trademark on the public’s behalf, said Meredith Wilkes, a trademark attorney at Cleveland law firm Jones Day. Typically, trademark opposers are competitors, Wilkes said.

Trademark oppositions usually follow a course similar to that of civil lawsuits, said Cynthia Lynch, administrator for trademark policy and procedure at the patent and trademark office.

The main difference is that testimony is done on paper, not in a courtroom, Wilkes said.

Occasionally, the trademark appeal board will hear oral testimony, Lynch said.

The board could decide whether to grant the Cocaine energy drink trademark in November 2007, Davis said.