I learned about the battle of the Poms in Lara Pearson’s trademark-law blog, BrandGEEK. Ms. Pearson writes that POM Wonderful—which in less than a decade has transformed the ruby-red seeds of the pomegranate fruit into an agribusiness-slash-consumer-products empire—is suing another beverage company for trademark infringement. The other company, which Ms. Pearson doesn’t identify by name, sells a drink called Pompis Energy.
Logos from BrandGEEK blog.
The complaint alleges that “defendant intentionally designed its Pompis energy drink product to copy the inherently distinctive POMMarks, used and made famous by POM.”
“I gotta say,” Ms. Pearson writes, “looking at the images above, I just don’t see what POM’s fussing about, but then again, maybe I’m missing something.”
Here’s the missing part: the privately held Texas wholesaler that sells Pompis Energy is called Backside Beverage. You see, pompis is Spanish slang for “buttocks.” The cheeky “O” in the logo reinforces the name, as do the photos on the Pompis Energy website. The writing aims for double entendres but fails the basic-English test:
Pompis Energy is here to support the strive for some great Pompis. We will stop at nothing to make sure you are getting the absolute best Pompis available. There has never been a beter time to make a stand against bad Pompis, so put down your coffee and take a stand with us... fight for your right for great Pompis! With your help, we can make the world a better place for all Pompis alike.
All errors sic.
I Googled around to see what other members of the legal community had to say about the POM Wonderful challenge. Most played it admirably straight. Here’s Lexology, which “provides fully tailored intelligence to the desktops of business lawyers worldwide on a daily basis”:
According to the complaint, the defendant has tarnished POM’s registered trademarks “because ‘pompis’ is a slang Spanish term for ‘backside,’ that is, ‘backside’ of a person. In English, ‘pompis’ is equally derogatory,— combining the term POM and the term ‘pis’ which phonetically sounds like ‘piss’.” POM contends that such derogatory use of its marks intentionally trades on its goodwill “while at the same time tarnishing the POM brand.”
POM also alleges that the defendant has placed a design in the middle of “Pom” to replace the “o” just as POM does, thus creating “a likelihood of confusion, mistake, and deception as to Defendant’s affiliation, connection, and/or association with POM among consumers and the trade.” POM further asserts that the defendant has connected “the health-focused POM® brand to a brand that conveys the opposite message. To the contrary, studies have shown that energy drinks are not healthful because of their high sugar and caffeine content.”
In a parenthetical aside, Courthouse News Service, which focuses on civil litigation, attempts to clarify the linguistic issue:
The Velázquez Spanish Dictionary contains no entry for “pompis,” and defines “pompa” as “pomp,” with no scatological reference. However, Spanish Spanish is not as rich in scatology as Latin American Spanish, and “pompas” is used to refer to the butt in Latin American Spanish, though one fluent speaker of the language denied this morning ever hearing the precise term “pompis” used.
Perhaps someone could direct the fluent speaker to Google Images, which is unequivocal about the accurate meaning of pompis.
Courthouse News Service also notes that POM Wonderful has sued “at least a dozen other companies on trademark claims” and is seeking damages for lost profits as well as punitive damages. POM also wants all the Pompis bottles destroyed.
Backside Beverage isn’t the only company that’s filed for registration of a Pompis trademark (date of filing: June 10, 2009). There is, or will be, a Pompis Sports Cantina in Dallas. There’s a chain of Pompis clothing stores based in Puerto Rico. Kramer Laboratories, in Miami, successfully registered Mi Angelito Pomada Pompis, an ointment for diaper rash whose name, the USPTO helpfully tells us, translates to “my little angel buttocks pomade.”
(There’s also a dead trademark for Pompis disposable diapers, which appear to have been marketed in the 1990s. To a Spanish speaker, “Pompis diapers” might sound cute, like “Tushy diapers.” To an English speaker, the name might be a little too onomatopoetic for comfort.)
POM Wonderful is owned by Lynda and Stewart Resnick, who also own Fiji Water; Teleflora, the national flower-delivery service; and 120,000 acres of fruit and nut orchards. A 2008 New Yorker profile of Lynda Resnick, “Pomegranate Princess” (subscription required), portrays her as a blunt and brilliant marketer. The company’s name and logo were her idea back in 2001, writes Amanda Fortini:
The [marketing] executives had … planned to name the beverage exactly what it was: pomegranate juice. “They didn’t see anything wrong with that,” Lynda said. “Pomegranate juice! By the time you read it, you’re in the lettuce section.” Lynda had another idea. “I wrote P-Heart-M on a piece of paper—to, you know, convey the heart-healthy benefits—and handed it to Stewart.” At the time, Stewart looked at it and put it away. “But I knew it was genius,” she said. “Even if he didn’t, I never doubted it.”
Later that day, Stewart called her and said, “You seem to have a vision for this business. Why don’t you take it over?”
No wonder she rankles at the Pompis Energy “O.” To Backside Beverage it may look like a little booty; to Ms. Resnik it resembles an upside-down heart. Her heart.
Lynda Resnick is also the author of a 2009 book about marketing, Rubies in the Orchard, in which she reveals “her commonsense method of breaking through marketplace clutter and consumer cynicism, and creating blockbuster brands with true staying power.”
I’ve never met the lady, but she sure sounds like someone who could take the piss out of Pompis. Watch your back, Backside Beverage!
Another slang angle: “Pom” (or “Pommy”) is Australian slang for “British.” There are multiple theories about the origin of the term; the authoritative World Wide Words says it probably came from—yes!—“pomegranate,” which the ruddy (facial) cheeks of new immigrants to the antipodes were said to resemble.