Sodalicious Counterclaim

Case 2:15-cv-00307-DAK-DBP Document 66 Filed 08/12/16 Page 1 of 55
Tessa Meyer Santiago, #9324

LINCOLN LAW, LLC
921 W. Center Street
Orem, UT 84057
Ph.: 801-953-5299
Fax: 800-584-6826
tms@lincolnlaw.com
Attorney for Defendants
IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION
SWIG HOLDINGS, LLC,
DEFENDANTS ANNE AUERNIG,

KEVIN AUERNIG, ANNNA KAY
FINDLAY and KENT FINDLAYS
ANSWER TO PLAINTIFFS SECOND
AMENDED COMPLAINT, AND
COUNTERCLAIM
a Utah limited liability company,

Plaintiff,
vs.
SODALICIOUS, Inc., a Utah corporation,
ANNE AUERNIG, an individual; ANNA
KAY FINDLAY, an individual, KEVIN
AUERNIG, an individual; KENT FINDLAY,
an individual, and KEVIN SANTIAGO, an
individual,
JURY DEMANDED
Civil No. 2:15-cv-00307-DAK
Honorable Dale A. Kimball
Defendant.
COMES NOW Defendants Anne Auernig (Anne) and Kevin Auernig (Kevin), Anna
Kay Findlay (Anna Kay) and Kent Findlay (Kent) collectively Defendants, individuals, by
and through their counsel, Tessa Meyer Santiago, and answer Plaintiffs Second Amended
Complaint (SAC/Complaint) as follows:
GENERAL DENIAL
Swig Holdings, LLC v. Sodalicious, Inc., 2:15-cv-00307-DAK, Auernigs and FIndlays Answer to Plaintiffs
Second Amended Complaint and Counterclaim
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Defendants deny each and every allegation and claim in the Complaint unless herein
admitted, qualified, or otherwise answered. Any allegation in the Complaint that is not expressly
admitted by Defendants herein is hereby denied, including, but not limited to, the allegations in
the Prayer for Relief.
In response to the numbered paragraphs of Plaintiffs Complaint, Defendants state as
follows:
PARTIES
1.
Defendants are without knowledge as to the facts alleged, therefore deny.
2.
Admit Sodalicious is a Utah-based entity. Admit that Sodalicious opened a
location in The Village. Deny the remainder of the allegations.

3.
Admit Anne is a founder, owner and director of Sodalicious. Admit that Anne
resides in Utah County. Deny the remainder of the allegations.

4.
Deny that Anna Kay Findlay is president of Sodalicious. Admit Anna Kay
Findlay is a founder, owner and director of Sodalicious. Admit that Anna Kay lives in Utah
County.
5.
Deny that Kevin Auernig is the secretary of Sodalicious. Admit Kevin Auernig is
a founder, owner and director of Sodalicious. Admit that Kevin resides in Utah County.
6.
Deny that Kent Findlay is a vice president of Sodalicious. Admit Kent Findlay is
a founder, owner and director of Sodalicious. Admit that Kent lives in Utah County.
7.
Admit.
8.
Allegations need no response.
9.
Deny.
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JURISDICTION
10.
Deny.
11.
Defendants are without sufficient information to form a belief as to the truth of
paragraph 11 of the Complaint and therefore denies the same.

12.
Admit.
13.
Deny.
14.
Admit.
15.
Admit.
SWIGS MARKS AND PRODUCTS
16.
Deny that Swig provides unique food and beverage goods and services.
Defendants add that that there are currently over 45 stand-alone locations selling flavored soda
and treats in the state of Utah. In addition, hundreds of gas stations, restaurants and convenience
stores sell flavored soda. As to the remainder of the allegations of paragraph 16, Defendants are
without sufficient information to form a belief as to their truth; therefore, Defendants deny the
same.
17.
Deny that Swig provides unique and distinctive drinks, beverage and food
offerings. As to the remainder of the allegations of paragraph 17, Defendant is without sufficient
information to form a belief as to the truth of the remainder of the allegations; therefore,
Defendants deny the same.
18.
Deny that Swig provides unique goods and services. As to the remainder of the
allegations of paragraph 18, Defendant is without sufficient information to form a belief as to

their truth; therefore, Defendant denies the same.
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19.
Deny that Swig offered its customers a unique and varied beverage experience.
Deny that Swig sold and served unique, distinctive and immediately recognizable drinks. As to
the remainder of the allegations of paragraph 19, Defendants are without sufficient information
to form a belief as to their truth; therefore, Defendant denies the same.
20.
paragraph 20; therefore, Defendants deny the same.

21.
paragraph 21 of the Complaint and therefore deny the same

22.
paragraph 22 of the Complaint and therefore deny the same.

23.

24.
Admit only that Swig appears to have registered a mark Dirty with the U.S.
P.T.O and been issued the Registration No. 4,611,070. Deny that the mark was properly granted,
and that Swig owns any common law rights in the word Dirty. Defendants are without
sufficient information to form a belief as to whether Swig uses the Dirty Mark as a source
identifier with respect to its goods and services, therefore denies the same.
25.
Admit only that Swig appears to have registered an oval-shaped logo with the
state of Utah. Deny that the logo was properly registered, that the Certificate of Trademark was
properly issued, and that Swig owns any common law rights associated with the logo.
Defendants are without sufficient information to form a belief as to the remainder of the
allegations in paragraph 25 of the Complaint and therefore deny the same.
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26.
Deny that Swigs combination of features is unique. Deny that Swigs Soda
Bubbles are unique. As to the remainder of the allegations in paragraph 26, Defendants are
without sufficient information to form a belief as to their truth or falsity, and therefore deny the
same.
27.
the statements that certain items make up Swig trade dress, therefore Defendants deny paragraph
27.
28.
Defendants deny that white menu boards are unique, distinctive and readily
identifiable. Defendants are without sufficient information to form a belief as to the truth of
remainder of the allegations in paragraph 28 of the Complaint and therefore deny the same.
29.
Defendants deny that Swigs predominately white Styrofoam cups with brightly
colored straws are unique, distinctive and readily identifiable. Defendants are without sufficient
information to form a belief as to the truth of the remainder of the allegations in paragraph 29 of
the Complaint and therefore deny the same.
30.
Defendants deny that there is anything unique, distinctive or readily identifiable
about the word Treats or a pink-frosted sugar cookies. Defendants are without sufficient
information to form a belief as to the truth of the remainder of the allegations in paragraph 30 of
the Complaint and therefore deny the same.
31.

32.

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33.
Defendants deny that Swigs product are of high quality, that the Dirty Mark,
Swig Logo and the items Swig alleges to be Trade Dress are unique, inherently distinctive and/or
have acquired strong secondary meaning. As to the remainder of the allegations of paragraph 33,
Defendants are without sufficient information to form a belief as to the truth, and therefore deny
the same.
34.
Defendants deny that the Swig Marks, as defined by Plaintiff, are an exclusive
identification of Swig products and distinguish the products from Swigs competitors.
Defendant is without sufficient information to form a belief as to the truth of the remainder of the
allegations of paragraph 34 of the Complaint and therefore deny the same.
35.

DEFENDANTS INFRINGEMENT
36.
Admit that only Anne, Anna Kay, Kevin and Kent opened and funded a beverage
shop in Provo. Deny that Kevin Santiago opened and funded a beverage shop in Provo. Deny
that the Sodalicious shop in Provo is a near exact knock-off of Swigs goods and services, and a
copy of Swigs exact business model. Admit that Sodalicious sells soda and other drinks with
additional flavors. As to the allegations that Defendant purchases its flavoring offerings from
the same manufacturer as Swig, uses the same price points as Swig may have used, and that
Sodalicious opened long after Swig developed the Swig Marks and related goodwill, Defendants
are without sufficient information to form a belief as to the truth of the allegations, and therefore
deny the same.
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37.
Deny that Sodalicious uses the Swig marks in any aspect of its business. Deny
that Defendants use the Swig marks. Specifically,

a.
Deny that Sodalicious uses the Dirty Mark and calls certain drink offerings
Dirty and Extra Dirty. Admit only that term Extra Dirty defined as half-and-half is on
Sodaliciouss website. Deny that Sodalicious uses the Dirty Mark on menus. Deny that
Sodalicious uses the Dirty Mark in social media and other internet-based advertising. Deny that
Defendants use any of the marks as alleged in paragraph 37a.
b.
Deny that Sodalicious utilizes any Swig marks or trade dress on its signage and
cups. Deny that Defendants use any Swig marks or trade dress whatsoever.
38.
Deny that any of Sodaliciouss goods and services infringe on Swigs trade dress.
Deny that Defendants sell any goods and services. Specifically,

a.
Deny that Sodalicious uses Swig bubbles as defined by Plaintiff. Deny that
Defendants have any signage or website. Deny that Defendants use the Swig bubbles on their
social media sites.
b.
Admit that certain but not all Sodalicious menus use red print. Deny the
remainder of the allegations in paragraph 38(b) as they relate to Sodalicious. Deny that
Defendants have menus.
c.
Admit that Sodalicious calls its dessert offerings Treats. Deny the remainder of
the allegations in paragraph 38(c) as they relate to Sodalicious. Deny that Defendants offer
dessert for sale, or any of the other allegations in paragraph 38(c).
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d.
Admit that Sodalicious uses a Styrofoam cup. Deny the remainder of the
allegations in paragraph 38(d) as they relate to Sodalicious. Deny all allegations in paragraph 38
as they relate to Defendants.
39.
Deny with regards to Sodalicious, and with regards to Defendants.
40.
Deny with regards to Sodalicious and with regards to Defendants.

THE INDIVIDUAL DEFENDANTS
41.
Admit, with regards to Defendants they have an ownership interest in
Sodalicious. Defendant are without sufficient information to form a belief as to the meaning of
direct financial interest, as pled in paragraph 41 and therefore deny the reminder of the
allegations of paragraph 41.
42.
Deny.
43.
Deny.
44.
Deny.
45.
Deny.
46.
Deny.
COUNT 1
FEDERAL TRADEMARK INFRINGEMENT
47.
Defendants re-allege and incorporate their responses to paragraphs 1-46 of the
Second Amended Complaint as if set forth herein.

48.
Deny.
49.
Deny.
50.
Deny.
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51.
Deny.
52.
Deny.
53.
Deny.
54.
Deny.
55.
Deny.
COUNT II
FEDERAL UNFAIR COMPETITION
56.

57.
Defendants lack sufficient knowledge to form a belief as to the truth of the
allegations in paragraph 57, therefore deny.

58.
Deny. Deny that Defendants ever used the Swig Marks.
59.
Deny. Deny that Defendants ever used the Swig Marks and ever caused the
confusion, deception, and mistake as alleged in the Second Amended Complaint.

60.
Deny.
61.
Deny.
62.
The allegation states a legal conclusion; therefore, no response is required.
However, to the extent a response is required, Defendants deny the allegations of Paragraph 62.
63.
Deny that Defendants authorized and approved infringing activity.
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COUNT III
COMMON LAW TRADEMARK INFRINGEMENT
64.

65.
66.
67.
68.

COUNT IV
UNFAIR COMPETITION
(Against Sodalicious)
69.

70.

71.

72.

73.
Deny.
PRAYER FOR RELIEF
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WHEREORE, Defendants respectfully request the Court a) dismiss this case with
prejudice, and/or otherwise deny all relief sought by the Plaintiff against the Defendants; b) enter
a judgment in favor of Defendants in this case and, after the judgment is final and nonappealable, award Defendants reasonable attorneys fees and costs for defending this frivolous
litigation; and c) award Defendants such other relief as this Court deems just and proper.
FIRST AFFIRMATIVE DEFENSE
Plaintiffs equitable claims are barred to the extent Plaintiff lacks clean hands and
misused the marks described in the Second Amended Complaint or fraudulently obtained the
marks described in the Second Amended Complaint.
SECOND AFFIRMATIVE DEFENSE
Sodalicious has been using the allegedly infringing trade dress and mark, including but
not limited to, its oval-shaped logo, white and red menu boards, soda bubbles, white Styrofoam
cup with branded label, pebble ice, pink sugar cookie, the word treats to describe its dessert
offerings, Torani syrups, and the terms dirty and extra dirty and developing consumer
recognition and goodwill therein since at least October 2013, such use being open, notorious and
known to Plaintiff. During this time, Plaintiff failed to take meaningful action to assert the
claims on which it bases its trademark and common law claims, on which inaction Sodalicious
has relied to its detriment. Plaintiffs claims are therefore barred by the doctrines of laches,
acquiescence, estoppel and/or waiver, inexcusable delay in bringing suit.
THIRD AFFIRMATIVE DEFENSE
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There is no likelihood of confusion, mistake or deception because, inter alia, the Mark
and trade dress, and the alleged trademark and trade dress of Sodalicious are not confusingly
similar.
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs rights in and to the portion of its alleged trademark are generic, or, in the
alternative, merely descriptive of goods or services offered under the mark. Plaintiffs alleged
mark is therefore inherently unprotectable absent acquired distinctiveness, which the alleged
Dirty Mark and trade dress items lack.
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs damages, if any, were the direct result of Plaintiffs own negligence, willful
conduct or other fault and Plaintiffs claims are therefore barred or must be proportionately
reduced.
SIXTH AFFIRMATIVE DEFENSE
Plaintiffs claims are barred to the extent that the damage or loss complained of was
caused by third parties over whom Defendants have neither control nor right of control.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs claims are barred, in whole or in part, by reason of their failure to comply with
Rule 9 of the Federal Rules of Civil Procedure.
EIGHTH AFIRMATIVE DEFENSE
Plaintiffs claims are barred by the fair use doctrine. Sodaliciouss use of the mark falls
within the descriptive fair use and nominative fair use privilege.
NINTH AFFIRMATIVE DEFENSE
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One or more of Plaintiffs claims are barred because Plaintiff fraudulently obtained the
federal and state registrations.
TENTH AFFIRMATIVE DEFENSE
Plaintiffs damages, if any, are the direct and proximate result of the conduct or other
fault of persons over whom Defendants have no control and for whose actions these Defendants
are not liable and, if appropriate, whose names shall be identified and added on the Special
Verdict for purposes of allocation of fault.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiffs claims are barred because they lack damages, and failed to mitigate damages.
TWELFTH AFFIRMATIVE DEFENSE
All conduct engaged in by Defendants was in good faith and not for the purpose of
violating any of Plaintiffs rights and did not knowingly infringe on Plaintiffs trademark and
trade dress.
THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiffs claim for punitive damages violates provision of the Constitution of the United
States and the Constitution of Utah and, therefore, should be barred. Specifically, the due
process clauses (including substantive and procedural due process) of the Fifth and Fourteenth
Amendments of United States Constitution, and Article I, 7 of the Utah Constitution; the taking
clauses of the Fifth and Fourteenth Amendments to the United States Constitution, and Article I,
22 of the Utah Constitution; the equal protection clauses of the Fourteenth Amendment to the
United States Constitution, and Article I, 24 of the Utah Constitution; the prohibitions against
excessive fines and punishments contained in the Eighth Amendment to the United States
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Constitution and Article I, 9 of the Utah Constitution; and, the right given an accused by the
Fifth and Sixth Amendments to the United States Constitution, and Article I, 12 and 13 of the
Utah Constitution; the prohibition of ex post facto laws contained in Article I, 18 of the Utah
Constitution; the open courts provision, Article I, 11 of the Utah Constitution.
Among the reasons an award of punitive damages in this case would violate these and
other provisions of the United States and Utah Constitutions are the following: the standards of
conduct and standards for awarding punitive damages are vague; Defendant will be treated
differently based upon the wealth or corporate status; Defendant may be repeatedly punished for
the same conduct; Defendant have not been given the same protections and guarantees as
criminal defendants, such as protection against self-incrimination, jury trial in the location
of the alleged wrongful conduct, charge upon adequately detailed information, proof beyond all
reasonable doubt; etc.; the States power to punish is not invoked for the purpose of serving the
public good, nor is it controlled by prosecutorial discretion, but rather, the states power is
invoked, unchecked, for private purpose of retribution and greed; and the threat of punishment
will be used to chill Defendants access to open courts and extort a favorable civil resolution.
At a minimum, Defendant must be given the protections and guarantees of an accused
under criminal law.
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiffs claim for punitive damages must be proved beyond all reasonable doubt.
Plaintiffs claim for punitive damages must be proven by clear and convincing evidence.
FIFTEENTH AFFIRMATIVE DEFENSE
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Plaintiffs claim for punitive damages is subject to the provisions and limitations of the
relevant statutory provisions, including but not limited to Utah Code 78B-8-201, Utah Code
76-3-301, and Utah Code 76-3-302, limiting the maximum amount that can be awarded against
a corporation for the purpose of punishment to $20,000.00.
SIXTEENTH AFFIRMATIVE DEFENSE
An award of punitive damages is barred by controlling law for reasons including that
Defendant did not act with actual malice, and that, in this case, because outrageous and malicious
conduct, if any, and any is expressly denied, is likely to be deterred by other means.
SEVENTEENTH AFFIRMATIVE DEFENSE
Plaintiffs claims for punitive damages against the Defendant are meritless and have not
been asserted in good faith and constitute a violation of Rule 11, Federal Rules of Civil
Procedure, and the Defendant is entitled to reasonable attorneys fees incurred in the defense of
the punitive damages claim.
EIGHTEENTH AFFIRMATIVE DEFENSE
Defendant complied in all relevant aspects with its legal obligations.
NINETEENTH AFFIRMATIVE DEFENSE
The Court lacks jurisdiction of this action.
TWENTIETH AFFIRMATIVE DEFENSE
Plaintiffs claims are barred by Utah Code 78B-2-305(3) and/or other applicable statute
of limitations.
TWENTY FIRST AFFIRMATIVE DEFENSE
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Plaintiffs claims against the Individual Defendants are barred because Defendants are
innured from liability under Utah Code 16-10a-902 and Utah law restricting liablity for
corporate acts to the corporation itself.
RESERVATION
Defendant hereby reserves the right to assert any other affirmative defense and/or claims
which may come to light during the course of discovery.
PRAYER
WHEREFORE, Defendants pray for judgment against Plaintiff on its Second Amended
Complaint as follows:
A. For an order dismissing the Second Amended Complaint with prejudice as against
Defendants for no cause of action;
B. For costs of this action including reasonable attorneys fees;
C. For such other and further relief as the Court may deem just and appropriate in the
circumstances and to effectuate justice.
JURY DEMAND
Defendants demand a jury on all issue so triable.
DEFENDANTS COUNTERCLAIMS SEEKING 1) CANCELLATION OF SWIGS
TRADEMARKS, and 2) ORDER FINDING SWIG ABUSED PROCESS IN FILING
SUIT AGAINST THE AUERNIGS AND FINDLAYS
Pursuant to Federal Rule of Civil Procedure 13, Defendants Anne Auernig, Kevin
Auernig, Anna Kay Findlay and Kent Findlay (Counterclaimants/Counterclaim Plaintiffs) by
and through counsel, counterclaims as follows:
PARTIES
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1.
Counterclaim Plaintiff Anne Auernig is an individual living in Utah County.
2.
Counterclaim Plaintiff Kevin Auernig is an individual living in Utah County.
3.
Counterclaim Plaintiff Anna Kay Findlay is an individual living in Utah County.
4.
Counterclaim Plaintiff Kent Findlay is an individual living in Utah County.
5.
Upon information and belief, Auernigs allege that Counterclaim Defendant Swig
is Utah limited liability company within its principal place of business in St. George, Utah.
JURISDICTION AND VENUE
6.
Jurisdiction for Counterclaim Plaintiffs first through fourth counter-claims is
proper in this Court under 28 U.S.C. 1367 and 15 U.S.C. 1119. Counterclaim Defendant Swig
filed a suit alleging federal trademark infringement.
7.
Jurisdiction for Counterclaim Plaintiffs second counter-claim for abuse of
process is proper in this Court under 28 U.S.C. 1367.

8.
Venue is proper in this Court under 28 U.S.C. 1391 because Swig, Sodalicious
and the Counterclaim Plaintiffs are residents of Utah, and the events complained of took place in
this judicial district.
GENERAL ALLEGATIONS
9.
Counterclaim Plaintiff is informed and believes that there are more than over two
hundred storefronts in Utah that serve soda with flavors added. There are dedicated soda shacks
like Fiiz, which has eleven locations in northern Utah, and Sip-N with three locations in Utah
Valley. Popn Sweets has four locations on the Wasatch Front, and Swig has nine locations
throughout the state. Sodalicious has six locations in Utah Valley. Then there are stand-alone
shops like Sip It! in Ephraim, Straws in Midvale, Club Soda in Ogden, Fizz N Fryz in Logan,
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Rocket Fizz in Salt Lake City, Subz & Sodaz in Clearfield, Daylight Donuts in Springville,
PopShop in Riverton, SlurpsUp in Cedar City, Sodaholics in Sandy, Swizzle in Delta, Quench It
in Heber, Fryz in Hurricane, and Bevs in Nephi, to name just a few. Additionally, Maverik,
Sonic, Gas n Go, Conoco, Crest, and other gas stations throughout the state sell soda with
flavored syrups. Restaurants like Cafe Rio and Zupas also sell flavored soda as part of their
menu.
10. Counterclaim Plaintiffs are informed and believe that as a general industry practice, the
flavored soda is sold in white Styrofoam cups and may include pebble ice, if that is the variety of
ice sold by the vendor. For example, Sonic sells, and has sold for years, flavored soda in a white
Styrofoam cup with a bright logo and a larger-diameter straw. This product is available at every
one of Sonics more than thirty locations in Utah. Maverik also sells exactly the same product
a flavored soda in a white Styrofoam cup with a brightly colored strawat its 100 locations
throughout Utah.
11.
Sodalicious founders Anne Auernig and Anna Kay Findlay work in the film
production industry.
12.
During the events described herein, they lived and worked in the Utah and Salt
Lake Valleys.
13.
In 1998, Anne worked at Hires where she served cherry or vanilla coke to which
syrups were added to make a flavored soda. In 2007, she worked at Wingers, which also offered
a variety of flavorings which customers could put into their Coke. She began ordering her own
Torani syrup so that she could make her own flavored soda at home.
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14.
In or around 2007, Anna Kay Findlay put caramel flavoring into her Pepsi Max
soda that she purchased at Jakes Brookside in Springville, Utah. She began ordering 1883 syrups
direct from the supplier. In early 2008, Anne Kay worked at the BYU Motion Picture Studios.
On production breaks, she frequented the Tesoro gas station that was then located across from
the studio. The gas station sold soda with flavored syrups. Anna Kay made herself mixed drinks
from the offerings at Tesoro.
15.
Between 2010 and 2013, Anne Auernig and Anna Kay Findlay worked together
on the several movie productions. Initially, the two created their own flavored sodas for the
sewing shop crew, using pebble ice from the Motion Picture Studio ice machine, and flavored
syrups from home. Later, the two supplied flavored soda to entire casts and crew on the movie
sets. These were called the wardrobe specials.
16.
In or around 2012, Elizabeth Norman (Liz), Annes sister, told her about the
coconut and lime combination of the dirty Coke. Liz called the drink a dirty Coke. Liz learned
of the dirty Coke from a friend of hers who had run a race in Wasatch County. The friend ate at a
small restaurant in Wasatch County where she ordered a drink called a dirty Coke that had
coconut and fresh lime added to it. The friend told Liz that coconut and fresh lime added to a
drink made the drink dirty. Liz in turn told Anne that the combination of coconut and fresh lime
added to Coke was a dirty Coke. Liz bought her own bottle of coconut syrup from Orson Gygi, a
Salt Lake supplier, within a few days and started making her own dirty Diet Cokes.
17.
Anne and Anna Kay shipped Toranis syrups (vanilla, coconut and caramel) to
Sicily where they were on location from March 2013 to May 2013. They were determined to
continue serving the wardrobe specials, even in Italy.
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18.
The wardrobe specials became so popular that Anne and Anna Kay had been
encouraged countless times by their friends, colleagues, cast and crew members to open a store
serving their flavored soda drinks.
19.
When they returned from Sicily, in May 2013, they determined to open a soda
shack. Like a snow cone shack, but selling soda. Their objective was to gather into one place the
best ingredients for making flavored or mixed sodas: pebble ice to quickly spread chill through
the soda, the right size straw, Styrofoam cups to preserve cold, best quality syrups, all sold
through a drive-through so that moms wouldnt have to get out of their minivans.
20.
Anne and Anna Kay, together with their husbands, Kevin Auernig and Kent
Findlay, respectively, formed the company Sodalicious in July 2013.

21.
In August 2013, Sodalicious began negotiations with Provo Citys Community
Development to obtain approval on what they determined to be a perfect locationthe tiny back
half of Johnnys Barbershop, located on 300 North in Provo.
22.
They signed a lease on their first location in Provo in September 2013.
23.
The Johnnys location of Sodalicious opened for business on October 21, 2013.
24.
Since then, Sodalicious has expanded to multiple locations.
Sodaliciouss Oval-Shaped Logo

25.
During the summer of 2013, before it even opened for business, Sodalicious
created an oval-shaped logo, a copy of which is inserted below.
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26.
The oval-shaped logo consists of a red oval, sometimes with a blue border. In the
middle of the oval is the company name Sodalicious and eight bubbles of varying size. The
company name is written in the font OldSansBlack Regular, a basic, sans serif font designed by
Manfred Klein.
27.
Sodalicious uses this oval-shaped logo to brand its stores and to identify its
products.
28.
The oval-shaped logo has been in continuous use since October 21, 2013. It is
placed on store signage and on every Sodalicious drink that is sold in a white Styrofoam cup.
See, for example, the Sodalicious-branded cup and store logo at Johnnys depicted below.
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29.
Defendants are informed and therefore allege that Swig also has an oval-shaped
logo. The logo contains the name of Swig, written in cursive font, within an oval. Swig
allegedly applied for a Utah state trademark on the oval-shaped logo six days before filing suit
against Sodalicious. See Complaint, Ex. B. The application claims an alleged date of first use of
July 1, 2013.
30.
Defendants are informed and therefore allege that Swig uses this logo on the
cardboard holder of their hot drink cups.

31.
Defendants believe and therefore allege that Swigs oval-shaped logo was white
writing on a purple/fuschia background. Defendants believe and therefore allege that the date of
first use of the logo on the hot drink holder is no earlier than January 2015, eighteen months after
Sodalicious opened for business with its branded cup.
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32.
Swig recently used and advertised a red-and-white oval-shaped logo that is a
direct copy of Sodalicious oval-shaped logo and color scheme. This is yet another in the
collection of copycat measures taken by Swig to keep up with Sodalicious branding and
marketing.
Sodalicious Drinks
33.
Sodalicious sells mixed sodas, hot chocolate and energy drinks.
34.
Sodalicious sells the vast majority of its flavored sodas by the name. For
example, it sells a combination of Mountain Dew with blood orange syrup and mango puree as a
Second Wife. A customer ordering a Civil Marriage gets lemonade to which blue curacao and
peach syrup have been added. Each store has a large Mixology board listing the various drinks
by name, and the base soda plus add-ins that make up the drink. One flavor combination is
coconut syrup and a fresh lime wedge. Another flavor add-in is half-and-half, a dairy additive.
Customers who order a dirty Diet Coke for example get Diet Coke to which coconut syrup and
fresh lime has been added.
35.
Customers may also make their own drinks by choosing from a base soda and
requesting various add-ins, including fruit purees, flavored syrups, and fresh fruit wedges.
36.
Sodalicious does not sell dirty sodas. It does not sell extra dirty sodas. The
drinks Dirty Diet Coke Dirty Dr. Pepper and Dirty Coke are not on any Sodalicious menu.
Sodalicious Drink Names, Cup, and Menu Boards
37.
Sodalicious began naming its drink combinations in early 2014. It is famous for
its unique tongue-in-cheek drink names that poke fun at the Utah culture, and provide a
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humorous moment during the ordering process. This fanciful naming is part of the Sodalicious
business model.
38.
Sodalicious refers to their named drink menu as its mixology.
39.
Sodalicious is informed and therefore alleges that Swig did not name its drinks in
this fanciful fashion, nor have a separate menu board for the named drinks until after Sodalicious
opened and started these business practices. Swigs providing a mixology for its customers soon
followed suit. To illustrate, in 2015, Swigs menu boards had 6 or 8 named drinks. Its current
menu board, new in 2016, has 22 named drinksseveral direct copies of Sodalicious
combinations.
40.
Sodalicious used dairy products as additives within several weeks after opening
its first store. Swigs use of dairy products as a flavor additive soon followed suit.
41.
From the day it opened, Sodalicious used and continues to sell its drinks in a
white cup branded with the red oval-shaped logo. Unless the Sodalicious location ran out of
stickers or the vendor ran out of printed cups, every drink, including soda, hot chocolate and hot
lava, sold by Sodalicious is sold in a white cup branded with the red oval-shaped logo.
42.
It is standard business practice to sell Sodalicious drinks in clearly-branded cups.
43.
Since October 21, 2013, the white Styrofoam cup with red oval-shaped
Sodalicious logo has been a source identifier for Sodalicious products.

44.
Prior to 2015, Swig did not sell soda in cups containing the Swig logo.
Sodalicious is informed and therefore alleges that from 2010 to the end of 2014, Swig sold its
sodas in a blue seascape cup obtained from a vendor (the style of which cup is available to any
24
business wishing to order cups in bulk) or a plain white Styrofoam cup without any Swig
branding.
45.
Neither the blue seascape cup nor the plain white Styrofoam cup was preprinted
branded with any Swig identifiers.

46.
Neither the blue seascape cup nor the plain white Styrofoam cup contained any
after-market branding which would identify the drink as being sold by Swig.
47.
In early 2015, Swig introduced a white Styrofoam cup with a colorful Swig logo
printed on the cup.

48.
Once again, Sodalicious sold its drinks in a branded Styrofoam cup before Swig
decided to brand its cups. Swigs branded cup followed Sodaliciouss.

49.
From the day it opened, Sodalicious offered energy cocktails, i.e., energy drinks
with flavor additives. Swig followed Sodaliciouss lead and added flavors to its energy drinks.
50.
Swig has also copied and continues to copy Sodalicious drink combinations. For
example, Sodalicious has sold an AK Special comprised of Dr. Pepper, coconut, vanilla and halfand-half from its early days. Swig followed suit, after Sodalicious opened, with its Malibu and
Texas Tab drinks of Dr. Pepper, coconut and vanilla. Sodalicious introduced its drink Youre
Welcome in November 2015, made of Dr. Pepper, coffee syrup, white chocolate and half-andhalf. Swig introduced its Wake-Up Call several months later, comprised of Dr. Pepper, coffee
syrup and vanilla crme on April 26, 2016.
51.
The Swig nugget ice is different in shape and size from the ice used by Sonic and
Sodalicious. Sodalicious uses ice produced by a Scotsman ice-machine. The ice is similar to
25
Sonic pebble ice. Sodalicious is informed and therefore alleges that Swig uses tubular nugget ice.
The difference in the ice is noticed and commented on by customers.
52.
Sodalicious Menu Boards are, generally, silver and red. Some are chalkboard
menu boards, with the only colors being black and white. The menu boards do not and have
never used purple, teal, or yellow.
Sodalicious Cookies
53.
Counterclaim Plaintiffs are informed and therefore allege that Swig opened its
first store in St. George in 2010.

54.
Dutchmans Market/Cravings Bakery is a bakery that supplies cookies to clients
throughout Utah. Plaintiffs are informed and therefore allege that Dutchmans/Cravings has been
selling its pink-frosted sugar cookies for over 28 years to clients throughout Utah.
55.
Counterclam Plaintiffs are informed and therefore allege that when Swig opened
in 2010, it ordered its cookies from Dutchmans/Cravings.

56.
Counterclaim Plaintiffs are informed and therefore allege that when Swig opened
its first store, it bought pink sugar cookies from Dutchmans/Cravings to resell in its store.
57.
The original pink sugar cookie sold by Swig was not developed solely for Swigs
use, or baked only for Swig. In fact, it was sold throughout southern Utah and the remainder of
the state by any business that ordered from Dutchmans/Cravings.
58.
Counterclaim Plaintiffs are informed and therefore allege that the pink sugar
cookie that originated with Dutchmans Market is considered, by the general public, to be an
identifier for St. George, not for Swig.
26
59.
In May 2013, one blogger wrote that the big deal at Swig is the sugar cookie
(which is actually baked by the folks at Dutchmans Market/Cravings Bakery in Santa Clara).
60.
Nicole Tanner, Swig founder, admits that we wanted a baked good with our
sodas and everything that we had so we went to Dutchmans [and ordered their cookie.] After
two years, Swig decided to make their own cookie. According to Nicole Tanner, she and her
baker devised a different recipe that makes the cookies better than they were before. Swig
called its new pink-frosted sugar cookie, the Swig cookie.
61.
Plaintiffs are informed and therefore allege that the Dutchmans cookie and the
Swig cookies are different, catering to the tastes of their booming fan bases.
62.
Plaintiffs are informed and therefore allege that, since the time Swig started
business, Dutchmans sells or sold their pink-frosted sugar cookie to, at least, the following
establishments: Swig, Fabulous Freddys (a chain of 8 carwashes located in Utah and Nevada);
Slurp (located in American Fork, Utah); Guzzles (Orem); Sodavine (Rexburg, Idaho); Slurps Up
(Santa Clara and Cedar City); and Sip N (Payson, Spanish Fork and Provo).
63.
Plaintiffs are informed and therefore allege that, at the time Swig filed suit, it did
not order its cookies from Dutchmans/Cravings, but was making its own, different and better
than Dutchmans, pink-frosted sugar cookies.
64.
At the time Swig sued Sodalicious and to the present, Sodalicious baked its own
cookies, including its sugar cookies, using its own recipes developed independent of
Dutchmans/Cravings.
65.
Swig and Sodalicious serve their sugar cookie differently.
27
66.
Counterclaim Plaintiffs are informed and therefore allege that Swig stores its
sugar cookies semi-frozen, and frosts the cookie with room temperature frosting once the
customer has placed an order. The cookie is handed to the customer on a grease-proof paper
square with no branding or in a tray similar to those used by convenience stores to sell hot dogs.
67.
On the other hand, Sodalicious frosts its sugar cookies with pink frosting as part
of its production. The already frosted cookies are packaged, and stored in a fridge prior to sale.
The cookies are sold individually packaged in a white paper envelope onto which the identifier
Sodalicious has been stamped.
68.
The cookies taste and look different. This difference is routinely commented on
by customers of Swig and Sodalicious. See, for example, the article, Food Fight! Swig vs
Sodalicious, published on May 13, 2014 in which the writer subjects the cookies of Swig and
Sodalicious to a taste test and is able to identify that the Swig cookie has more frosting, is served
chilled and is moister than the Sodalicious cookie.
No evidence of Customer Confusion
69.
Consumers have no difficulty telling Swig and Sodalicious apart. Numerous
polls have been conducted in which consumers are able to identify Swig from Sodalicious. In
the same article referenced in paragraph 67, the write states that Swig is currently getting
creamed by Sodalicious on Yelp. They have a 2 star rating so far. . . . Sodalicious comes in with
4.5 stars on Yelp.
70.
On July 15, 2016, KSL conducted a poll to see What is Utahs best local soda
shop? The nominees, in the order listed in the poll were Sodalicious, Swig n Sweets, Straws,
Bevs Hot and Cold Beverages, Popn Sweets, Popshop, Elis Old Fashioned Ice Cream & Soda
28
Shop, FiiZ Drinks, and Soda Crazy. Thousands of readers voted in the poll, and were able to
clearly distinguish between Swig and Sodalicious, as well as the other nominees. The results of
the poll ae as follows: Fiiz, garnered 4,082 votes for 29 percent of the vote, Sodalicious came in
second with 4,403 votes and 29 percent of the vote. Swig came in third with 3,444 votes and 25
percent of the vote. Over two thousand other readers voted for the remaining nominees.
71.
On June23, 2016, reviewers conducted a taste test on Swig and Sodalicious
products, as well as a comparison on customer service. See

https://thesnarktasticsreviewitall.wordpress.com/2016/06/23/soda-wars-sodalicious-vs-swigreview/. The review concluded that the Swig cookie was lighter, fluffier with better tasting
frosting than the Sodalicious cookie. The review concluded that Sodalicious won the soda battle
because its flavors were truer to flavor. Overall, Sodalicious won the title because of its better
soda and friendlier customer service. Just like on Yelp, the reviewers rated Swig a 2 and
Sodalicious a 4.
72.
A November 19, 2014 Daily Universe newspaper article comparing Swig and
Sodalicious found that small aspects of the products differ between establishments in ways
people can recognize. The ice is slightly different, the syrups arent the same, and different
ratios are applied. A student, who had experienced both Swig and Sodalicious, set her mind
on Sodalicious for a particular reason. She said, It all comes down to the ice.. . . For some odd
reason, the pebble ice at Sodalicious is so much better.
73.
Counterclaim Plaintiffs know of no instance in which a customer has bought a
product at Sodalicious believing he or she was at Swig.
29
74.
Generally, in taste tests and polls, consumers tend to prefer Sodalicious over Swig
when confronted with a choice between the two brands.

Dirty as descriptive term for putting add-ins into a beverage
75.
The word dirty has been used prior to Swigs appropriation of the term, and
continues to be used by the general public to refer to a method of serving food, including drinks,
to which an additive has been added to change to flavor and appearance.
76.
Dirty rice is a Cajun specialty. It gets its name from the chopped up meats that
are added to the white rice, to give the rice the appearance of dirt mixed in with the rice. Dirty
beans are beans studded with sausage.
77.
In the beverage industry, it is common knowledge that to make a drink dirty
mean you may slightly change the color and taste by adding or changing some of the essential
ingredients. See, for example, english.stackexchange.com/.../what-does-dirty-mean-in-relationto-a-drink, May 2011.
78.
Dirty Chai is a popular coffee shop drink. Starbucks sells it nationwide.
Cannellas in Salt Lake City sells it. It is also sold at over one hundred Peets Coffee and Tea in
California, Colorado, Maryland, Massachusetts, Oregon, Virginia, Washington and Washington
D.C. Dirty Chai is made by adding one shot of Espresso into a Chai Latte. Dirty Chai is also sold
by Celestial Seasonings tea company as one of its Chai products. It is chai tea spike with bold
espresso.
30
79.
In England, a Dirty Pint is used to describe a pint that is made up of three or
more alcoholic drinks. Dirty pints are usually consumed as a result of losing a bet or to celebrate
a birthday.
80.
For many years, the term dirty has been a generic or descriptive term for an
alcoholic drink with an add-in, e.g., a dirty martini. A Google search for dirty martini yields
nearly two million results.
81.
A Dirty Girl Scout drink is comprised of Baileys Irish Cream, vodka, White
Crme de Menthe and kahlua. The drink tastes, unexpectedly, like a Thin Mint cookie. A Dirty
Blonde is a cocktail with a white wine base and fruit additives. A Dirty Monkey is mixed drink
containing rum, kahlua, banana liqueur, Cream de Coco, pineapple juice and half a banana. A
Dirty Shirley (an alcoholic version of a Shirley Temple) is 7-up, vodka, grenadine, cherry
liqueur, and sour cherries.
82.
The term dirty has also become a generic or descriptive term for a soft drink or
soda with an add-in.

83.
Dirty soda, as a term, is generally and widely accepted throughout the United
States to mean a soda to which an opiate cough syrup has been added. See, for example, the
hashtag #dirtysoda with 5,414 posts. Out of the most recent 300 or so posts since February 1,
2016, only three reference a Swig product. The remainder are posted from throughout the United
States and several foreign countries and depict soda mixed with opiate cough medicine.
84.
A Google search for the term dirty Diet Coke yields 548,000 results; dirty Dr.
Pepper yields 1. 2 million results.
31
85.
According to the internet, a Dirty Coke can be comprised of various ingredients:
one shot jagermeister and filled with Coke, http://www.drinkswap.com/dirty-coke.htm; Coke,

coconut syrup, lime and half-and-half, http://cincyshopper.com/dirty-coke-recipe/; Coke,
vanilla, cherry and vodka. http://cupcakesandkalechips.com/cherry-vanilla-dirty-coke/.
86.
However, according to Swig, a dirty Diet Coke or Dr. Pepper or is only Diet Coke
with coconut syrup.

87.
On August 28, 2012, Studio 5 produced a segment on Dirty Diet Coke. The
recipe was obtained from Studio 5 producer Halli Tinti who called it one of her all time favorite
family recipes. The term dirty is explained on the report as being called dirty because you
add a little something to the Diet Coke. The recipe includes Diet Coke, sugar-free coconut
syrup, one lime and ice. The segment does not identify Swig as the source of the recipe or the
term dirty.
88.
On January 4, 2013, blogger Kami posted the recipe for Dirty Diet Coke. It
includes Diet Coke, lime, pebble ice, and Toranis coconut syrup. The blogpost does not identify
Swig as the source of the recipe or the name of the drink.
http://www.sweetcharli.com/2013/01/dirty-diet-coke-recipe.html.
89.
In June 2013, blogger Kami, posted a recipe for dirty diet coke. Her ingredients
include pebble ice, diet coke, Torani sugar free coconut syrup and a lime wedge.
http://www.nobiggie.net/how-to-make-a-dirty-diet-coke/. She learned how to make the drink on
a local television show, Studio 5. The recipe does not identify Swig as the source of the drink or
the term.
32
90.
On July 5, 2013, the blog Our Best Bites posted a recipe for Dirty Diet Coke,
which included Toranis brand coconut syrup, ordered from Amazon; crushed ice; lime and 12 tablespoons of half-and-half. The blogger, who is from Utah, called this the traditional Dirty
Diet Coke. http://ourbestbites.com/2013/07/dirty-diet-coke/#comment-559464.
91.
In July 2013, one blogger wrote that she ordered a dirty Dr. Pepper from Sonic.
92.
On July 22, 2013, blogger Tiffany, out of Houston, Texas, shared a Dirty Dr.
Pepper or Dirty Coke Recipe on her blog, mylitter.com. The recipe consisted of Diet Dr. Pepper,
2 T Toranis coconut syrup, juice of a lime and half-and-half. The blog does not identify Swig as
the source. http://mylitter.com/recipes/dirty-dr-pepper-or-dirty-coke-recipe/.
93.
On August 5, 2013, Studio 5s Brooke Walker described Dirty Diet Coke as the
drink of the summer. The reporter lists her favorite places to grab a Dirty Diet Coke: The Slurp,
in American Fork, Utah; Swig, located in St. George; Sonic, multiple locations through the
country; Shivers, located in Salt Lake City, and Warrens-Dylans, located in Ogden (in the order
listed by the reporter).
http://studio5.ksl.com/index.php?nid=71&sid=26303822#KC77RxCtXTu0VKQp.99
Trademark Application and Registration
94.
On August 2, 2013, Swig applied for a trademark on the word Dirty for goods
and services in class 32. The registration was made under section 1(b) intent-to-use. See Ex. 1,
p. 2.
95.
In the initial application on August 2, 2013, Swig identified the mark for the U.S.
Patent and Trademark Office (USPTO) as applying to
33
Coconut-based beverages not being milk substitutes; Coconutbased nonalcoholic beverages not being milk substitutes;
Concentrated fruit juice; Concentrates and powders used in the
preparation of energy drinks and fruit-flavored beverages;
Concentrates for making fruit drinks; Concentrates, syrups or
powders for making soft drinks or tea-flavored beverages;
Concentrates, syrups or powders used in the preparation of soft
drinks; Concentrates, syrups or powders used in the preparation of
sports and energy drinks; Fruit concentrates and purees used as
ingredients of beverages; Fruit juice concentrates; Fruit-flavored
beverages; Ice cream soda; Italian soda; Juice base concentrates;
Non-alcoholic beverages containing fruit juices; Non-alcoholic
beverages, namely, carbonated beverages; Non-alcoholic fruit
extracts used in the preparation of beverages; Non-alcoholic fruit
juice beverages; Soda pops; Soft drinks, namely, sodas; Syrup
substitutes for making beverages; Syrups for beverages; Syrups for
making beverages; Syrups for making non-alcoholic beverages.
Answer Ex. 1.
96.
The application was denied for confusion with two marks, one of which was
DIRTY SUEs, a mark registered to include non-alcoholic cocktail mixes, including the use of
coconut and various fruit juices to create non-alcoholic cocktails with soda. See Answer Ex. 2.
97.
In response to the denial, and in order to register its mark, Swig changed
its mark identifier, removing the language struck through below:

Coconut-based beverages not being milk substitutes;
Coconut-based nonalcoholic beverages not being milk
substitutes; Concentrated fruit juice; Concentrates and
powders used in the preparation of energy drinks and fruitflavored beverages; Concentrates for making fruit drinks;
Concentrates, syrups or powders for making soft drinks or
tea-flavored beverages; Concentrates, syrups or powders
used in the preparation of soft drinks; Concentrates, syrups
or powders used in the preparation of sports and energy
drinks; Fruit concentrates and purees used as ingredients of
beverages; Fruit juice concentrates; Fruit-flavored
34
beverages; Ice cream soda; Italian soda; Juice base

concentrates; Non-alcoholic beverages containing fruit
juices; Non-alcoholic beverages, namely, carbonated
beverages; Non-alcoholic fruit extracts used in the
preparation of beverages; Non-alcoholic fruit juice
beverages; Soda pops; Soft drinks, namely, sodas; Syrup
substitutes for making beverages; Syrups for beverages;
Syrups for making beverages; Syrups for making nonalcoholic beverages.
Answer Ex. 2.
98.
After making adjustments and relinquishing scope, Swigs DIRTY mark
was identified in its registration as

Concentrates, syrups or powders for making soft drinks or
drinks; Ice cream soda; Italian soda: Non-alcoholic
beverages, namely carbonated beverages: Soda pops; Soft
drinks, namely sodas.
Compl. Ex. A.
99.
It filed its statement of use on specimen on July 24, 2014. But, instead of putting
its date of first use after the date of its application based on intent-to-use, it declared that the date
of first use of the mark DIRTY was April 1, 2010.
100.
The USPTO issued U.S. Trademark Registration No. 4,611,070 for the trademark
Dirty. (DIRTY) to Swig on September 23, 2014. See id.

101.
The DIRTY registration was amended by Plaintiff on March 30, 2015, just a few
weeks before Swig filed suit. See Section 7 Request Form, part of the U.S. Trademark
35
Registration No. 4,611,070 file, a copy of which is attached as Exhibit 3 to this Answer. Swig
removed the language struck-through below:
Concentrates, syrups, or powders for making soft drinks or
drinks; Ice cream soda; Italian soda; Non-alcoholic
beverages, namely, carbonated beverages; Soda pops; Soft
drinks, namely, sodas.
Compl. Ex. A; Answer Ex. 3 (where the square brackets [. . . ] indicate language that has been
removed from the description through amendment). Swigs latest amendment surrendered
trademark coverage of concentrates, syrups or powders for making soft drinks, in addition to the
territory already surrendered in response to the USPTO denial. Currently, Swigs DIRTY mark
identifies only the following:
Ice cream soda; Italian soda; Non-alcoholic beverages, namely,
carbonated beverages; Soda pops; Soft drinks, namely sodas
Compl. Ex. A.
102.
Because of the prosecution history, DIRTY does not apply to coconut-
based beverages, coconut-based non-alcoholic beverages, concentrated fruit juices, fruit

juice concentrates, juice base concentrates, non-alcoholic beverages containing fruit
juices, fruit flavored beverages, non-alcoholic fruit extracts used to make beverages,
syrups for making beverages and syrups for making non-alcoholic beverages (emphasis
added).
36
103.
Because of the voluntary surrender by Swig, DIRTY does not apply to
concentrates, syrups or powders for making soft drinks or tea-flavored beverages;

Concentrates, syrups or powders used in the preparation of soft drinks; Concentrates,
syrups or powders used in the preparation of sports and energy drinks. Compl. Ex. A.
104.
In or around June 2015, Swig made a second post-registration change to
the date of first use. Its original application stated that it was filing on the intent-to-use
basis with April 1, 2010 as the date of first use. In June 2015, after it filed suit, it
changed its registration basis to date of first use and the date of first use to August 2,
2010
Current Use of Mark by Swig
105.
According to the documents on file with the USPTO, Swigs DIRTY mark does
not read on any beverages, including soda, that use coconut, syrups, fruit juice, fruit extract or
fruit flavoring. Nor does it read on any add-ins to beverages.
106.
Nevertheless, Swigs menu offered and continues to offers a dirty Dr. Pepper
which contains Dr. Pepper and Coconut.

107.
Swig advertising describes a Dirty Pepsi which contains Pepsi and coconut, and
Dirty Dr. Pepper which contains Dr. Pepper and coconut.

108.
Swigs Whats in that? drink boards, used in their stores at the time of the filing
of the Complaint, define Dirty as Dr. Pepper + coconut.

109.
Swig historically and routinely uses the term dirty as a verb to describe what is
done to a soda when coconut is added to a base soda.
37
110.
In September 2012, Nicole Tanner described to a reporter that a customer could
dirty up any drink. She said, Put coconut in it, and it is awesome. I dirty up my Diet Coke all
the time. The best-seller at Swig is the dirty Dr. Pepper. Dirty means coconut flavoring was
added. http://www.dixiesunnews.com/articles/2012/09/10/swigkatelyn-revised/ .
111.
In February 2014, Nicole Tanner informed a reporter from Utah Business that the
most popular drinks at Swig are the dirty drinks. The drink consists of the customers choice of
soda with the addition of coconut syrup. Tanner states that The dirty Dr. Pepper is the No.1
drink, but we dirty up a huge amount of drinks.
http://www.utahbusiness.com/articles/view/swig_keeps_thirsty_customers_refreshed.
112.
In April 2014, Nicole Tanner informed Channel Four news that the descriptive
dirty did not originate with Swig. She started adding coconut flavoring to Diet Coke. An
office staff in St. George loved it so much, they made a name for the drink. One day, people
from the office came to Nicole and told her, we call the coconut flavor, dirty. Swig
appropriated the term, and Tanner says, that name has turned into a crazy phenomenon: Dirty
Diet Coke. In the television news report, Tanner describes how Swig stumbled upon the
descriptive word dirty: A couple months into our business, an office building said that they
named them dirty Dr. Peppers. And, we thought, thats a really fun kinda nick name for it. So
thats where the dirty craze started. And, so we came up with the dirty drinks. You can put dirty
coconut in any drink. . . . Dirty to us just means coconut.
http://www.good4utah.com/contact/emily-clark/the-story-behind-swig-and-utahs-original-dirtydiet-coke.
38
113.
According to Tanner, dirty at Swig does not mean fresh lime. It only means the
additive coconut. Id.

114.
On September 17, 2015, five months after Swig filed suit to protect its DIRTY
mark, Nicole Tanner, Swig founder and corporate spokesperson, on a televised news broadcast,
reiterated Swigs longstanding position that dirty always means coconut to us.
Use of Dirty by Others
115.
The term dirty is currently used across the country to refer to the addition of
add-ins to soda without any reference to Swig, or any acknowledgement that the original dirty
Dr. Pepper, dirty Diet Coke and dirty Coke originated with Swig. The term is used outside
of Utah and by people who have never consumed a Swig product.
116.
In October 2013, a California blogger posted a recipe for a Dirty Diet Coke,
consisting of Toranis coconut syrup, lime and half-and-half. She heard about this delectable
dirty diet coke all over social media lately. The blogger does not identify Swig as the source
of the Dirty Diet Coke recipe. http://www.littlemissmomma.com/2013/10/quick-dirty-dietcoke.html.
117.
In March 2014, @cbgbgirl, a California Instagram user, posted a picture of a
carton of half-and-half, a bottle of Toranis sugar-free coconut syrup and a 2-liter bottle of Diet
Coke. The comment was Its dirty diet coke time.
118.
On June 14, 2014, blog Crme de la Crumb posted a recipe for Dirty Dr. Pepper
Floats. The recipe is described as a fun summertime dessert based on the ultra popular Dirty
Dr. Pepper drink. The blog defines Dirty Dr. Pepper = Dr. Pepper (didnt see that coming did
you?) + coconut + lime. The recipe includes Dr. Pepper, coconut milk, coconut extract, and
39
limeade. It does not identify Swig as the source of the Dirty Dr. Pepper drink.
http://lecremedelacrumb.com/2014/06/dirty-dr-pepper-floats.html.
119.
On July 1, 2014, California blogger Ashley Phipps posted a recipe for a Dirty
Coke Slushie. The recipe calls for Coke, coconut extract and lime.
http://www.simplydesigning.net/dirty-coke-slushie-share-coke-gift-idea/.
120.
On July 7, 2014, Cierra posted a recipe for Dirty Diet Coke on cincyshopper.com.
The recipe calls for Coke, lime and coconut. The recipe does not identify Swig as the source of
the drink or the term. http://cincyshopper.com/dirty-coke-recipe/.
121.
On July 14, 2014, blogger Leanneja (Las Vegas) posted a recipe for Dirty Diet
Coke, comprised of Diet Coke, lime and Torani coconut syrup. The recipe does not identify Swig
as the source of the drink or the term. http://www.nobiggie.net/how-to-make-a-dirty-diet-coke/.
122.
On August 25, 2014, blogger Briana Carter from Tipton, Indiana, posted a recipe
for Dirty Coke with Homemade Coconut Syrup. The recipes included Coke, coconut syrup, lime
juice and half-and-half. http://bargainbriana.com/dirty-coke-homemade-coconut-syprup/ The
blogger does not identify Utah or Swig as the source of the Dirty Coke recipe.
123.
On March 25, 2014, Blogger Katie posted a recipe for Dirty Diet with MiniSyrup.
She described that there are so many versions of a Dirty Soda: Dirty Coke, Dirty Diet Coke,
Dirty Pepsi and Dirty Diet Pepsi. In her opinion, a soda is dirty when it has a little Coconut
Syrup added. http://thecraftyblogstalker.com/dirty-diet-soda-with-minisyrup/. She described
how she stopped at a Maverik gas station, noticed the flavored syrups next to the soda fountain
machine, and created her own dirty soda. Soon, she was stopping at Maverik every day for her
Dirty Soda fix. Id.
40
124.
On June 20, 2014, Jessica Witt, writer for the Canadian Food Network,
http://www.foodnetwork.ca/fun-with-food/blog/what-floats-your-boat/29796/, posted a recipe for

a Dirty Dr. Pepper Float.
125.
On July 22, 2014, Gina, a guest blogger on i heart naptime posted the recipe for
Creamy Dirty Diet Coke Pops. She stated that the dirty diet coke craze is taking over right
now. And, therefore, she created a frozen dessert using Diet Coke, coconut syrup and lime.
126.
On June 3, 2015, Business Insiders Megan Willett tried Dirty Diet Cokethe
bizarre beverage people on Pinterest are obsessed with. Her recipe included diet coke, coconut
syrup, lime and half-and-half. http://cupcakesandkalechips.com/cherry-vanilla-dirty-coke/. The
company is located in New York, New York. The article does not mention Swig as the source of
the term or the drink.
127.
The recipe for Cherry Vanilla Dirty Coke, consisting of cola, vanilla, grenadine,
and an ounce of vodka was posted June 25, 2015, http://cupcakesandkalechips.com/cherryvanilla-dirty-coke/. The post does not attribute the term dirty to Swig, or associate the Dirty Diet
Coke to Swig.
128.
On July 24, 2015, blogger Tatanisha Worthey from Michigan posted a recipe for
Dirty Coke, which consisted of homemade coconut syrup, juice of a fresh lime, and half-andhalf. The recipe does not identify Swig as the source of the Dirty Coke recipe.
http://www.awortheyread.com/dirty-coke-drink-recipe/.
129.
The event website, Paintnite.com, recommends Iggys Sports Grill for its
wonderful feel. . .You can have any drink youd like or have them mix you up a Dirty Dr.
Pepper. (https://www.paintnite.com/pages/events/view/provo/908092, posted Sept. 22, 2015) .
41
130.
The calorie counting website, myfitnesspal.com, owned by MyFitnessPal located
in San Francisco, California, has a listing for the calories in a GenericDirty Diet Coke.
http://www.myfitnesspal.com/food/calories/generic-dirty-diet-coke-216491797.
131.
Counterclaim Plaintiffs are informed and therefore allege that gas stations
throughout Utah, and into Idaho, advertise and sell dirty Diet Cokes, Cokes and Dr.
Pepper.
132.
Counterclaim Plaintiffs are informed and therefore allege that Sonic, in
Utah and California, sells dirty Diet Cokes, Cokes and Dr. Pepper.
133.
Counterclaim Plaintiffs are informed and therefore allege that Nels s
Outs in LaGrande, Oregon have been calling and serving dirty soda for the past fifty
years.
134.
Food and beverage vendors continue to use the term dirty as a descriptive term
referring to the addition of a syrup or a fruit puree to a base soda. See, for example, the signs
displayed by two different vendors at the Sheepherders Competition, Midway, Utah, September
6, 2015. The vendor clearly sells dirty Dr. Pepper.
42
Sheepherders Competition, Midway Utah, September 6, 2015
43
135.
Daylight Donuts, partnering with Sipzz, in Springville, Utah, sells a drink called
Daylight Dirty Delight, made with Coke, sugar-free coconut and fresh lime, and a Dirty Diet Dr.
Pepper, made with Diet Dr. Pepper, SF Coconut and fresh lime. See image of menu board below.
136.
Sugarhouse Waffles, in Anchorage, Alaska, sells Dirty Dr. Pepper, comprised of
Dr. Pepper with a hint of coconut and a fresh lime wedge, and a Dirty Coco Cola, made the same
way.
44
137.
Clearly the term dirty is a descriptive term used generally throughout the
country describing a soda to which coconut, lime and sometimes half-and-half have been added.
138.
Dirty is also a descriptive term for the flavor combination of coconut and fresh
139.
Dirty soda is also a descriptive term used beyond the Utah flavored soda market
lime.
to mean, generally, a base soda to which an opiate cough syrup has been added.
140.
Clearly the term dirty is a generic term for the addition of add-ins to soda.
FIRST CLAIM FOR CANCELLATION OF TRADEMARK
(Generic and/or Descriptive Term)
141.
Counterclaim Plaintiffs repeat and re-allege each and every allegation as set forth
in the foregoing paragraphs as if fully set forth herein.

142.
The Lanham Act, 15 U.S.C. 1604(3), allows for the cancellation of a mark at
any time if the registered mark becomes the generic name for goods and services, or a portion
thereof, for which it is registered.
143.
The term dirty has been used for decades by other beverage providers and is
currently used across the country by consumers to describe beverages, including soda, with an
add-in.
144.
The term dirty is a generic and/or descriptive term for a soda with an add-in.
145.
The term dirty has been used prior to the opening of Swig by vendors and
customers to describe soda with the addition of coconut syrup, lime and, sometimes, half-andhalf.
45
146.
The term continues to be used across the country, and internationally, for soda
with add-ins. The add-ins are not uniform, and range from coconut syrup, lime syrup, half-andhalf, coconut extract, coconut cream, fresh lime, to lime soda. These uses of the term dirty are
not associated with Swig and the term dirty does not denote Swig as the source identifier in the
users mind.
147.
Therefore, Plaintiffs alleged DIRTY trademark is a generic reference to the
goods offered under this mark i.e., a soda to which flavoring, most often some form of coconut
and lime, has been added.
148.
Swig did not originate the mark.
149.
Swig was not the first to use the mark.
150.
Plaintiffs alleged DIRTY mark is not distinctive.
151.
Plaintiffs alleged DIRTY mark has not acquired distinctiveness.
152.
Consequently, Plaintiffs alleged DIRTY mark has no secondary meaning and
cannot function as a trademark.

153.
Counterclaim Plaintiffs therefore requests the Court cancel Plaintiffs Registration
(Registration No. 4,611,070), issued September 24, 2014, for the mark DIRTY in goods and
service class 32 for the application filed August 02, 2013.
SECOND CLAIM FOR CANCELLATION OF TRADEMARK
(Fraud in the Application Process)
154.
Counterclaim Plaintiffs repeat and re-allege the allegations in the
paragraph above as if contained herein.
46
155.
The Lanham Act, 15 U.S.C. 1604(3), permits the cancellation of a U.S.
trademark registration, at any time, if the registration was obtained fraudulently. Obtained
has been interpreted to mean not only the procurement of the initial registration, but the
maintenance, renewal and incontestability status of an existing registration. Fraud in procuring a
trademark registration occurs when an application knowingly makes false, material
representations of fact in connection with its application.
156.
Swig Holdings, LLC claims a date of first use of 1 April 2010 in its application.
157.
Swig, LLC was registered to do business in Utah on 10 December 2009.
158.
Counterclaim Plaintiffs believe and therefore allege that the first store
opened in April 2010.

159.
Swig did not use the term dirty when it first opened in April 2010. It
adopted the term after being apprised of it by its customers.

160.
Swig Holdings, LLC was not registered to do business in Utah until 6 June 2013.
Swig Holdings, LLC filed two applications to register the text-only trademark DIRTY in Utah on
10 May, 2013 (Filing Nos. 8675689-0190 and 8675689-0191).
161.
Swig Holdings, LLC later filed its federal trademark application for DIRTY on 2
August 2013 under section 1(b) as an intent-to-use application.

162.
After overcoming a likelihood of confusion refusal, and the USPTO issued a
Notice of Allowance, Swig filed its statement of use and specimen on 24 July 2014. But, instead
of claiming a first use in commerce after the date of its intent-to-use application, Swig claimed a
date of first use of 1 April 2010.
47
163.
The fraud rule applies whenever an applicant or registrant alleges use of a
trademark, including a new application based on existing use, in a statement of use submitted to
finalize an application originally based on intent to use, or in any declaration of use required to
maintain an existing registration. In short, an owner's claims about the uses of a mark actual
or intended must be borne out by objective evidence, or else grounds exist to void the
application or registration.
164.
Swig applied for a Utah trademark without being properly registered to do
business in Utah.
165.
Swig made a false representation to the Utah Department of Commerce as to its
ability to conduct business in the state of Utah and to apply for a trademark.
166.
Swig made a false representation to the Utah Department of Commerce and the
USPTO regarding the date of first use of the mark.

167.
Swig made a false representation to the USPTO regarding Swigs intent to use the
Dirty mark.
168.
Swig made false representations to the USPTO regarding the Swigs date of first
use of the term dirty in interstate commerce.

169.
Swig made a false representation to the USPTO regarding the placement of the
mark DIRTY on Swig goods in interstate commerce.

170.
Swig knew or should have known that it had not affixed its mark onto goods that
were placed in interstate commerce.

171.
Swig also knew that it used DIRTY to refer to coconuta use of the mark that
had been expressly disallowed by the USPTO. Nevertheless, it continued with its application
48
which contained a materially false representation to the USPTO that Swig did not and would not
use DIRTY to describe the addition of coconut to soda.
172.
These false representations are material to the registrability of the DIRTY mark.
173.
Swig knew the representations were false.
174.
Swig made the representations with the intent to induce the Utah Department of
Commerce and the USPTO to grant its application.

175.
The USPTO reasonably relied on the false representations made by Swig and
granted the trademark application.

176.
Counterclaim Plaintiffs have been damaged by that grant of the Registration.
177.
Counterclaim Plaintiffs therefore request that the Court cancel the Trademark
Registration No. 4,611,070.

THIRD CLAIM FOR CANCELLATION OF TRADEMARK
(No Bona Fide Use of Mark in Commerce Prior to Filing of Use-Based
Application)
178.

179.
Swig applied for the trademark protection in August 2013. It filed an
intent-to-use application.
180.
Nevertheless, when it filed its statement of use, it listed the date of first
use of April 1, 2010, three years before the date of its intent-to-use application.
181.
The first Swig store did not open until April 2010.
49
182.
Swigs owner Nicole Tanner admits that Swig did not use the term dirty
when the store first opened. The term was later borrowed from Swig customers as a
descriptive term for coconut added to a Dr. Pepper.
183.
As of April 1, 2010, Swig did not use the dirty mark on any goods placed
in interstate commerce.
184.
As of August 2, 2010, Swig drinks were sold only in Utah.
185.
As of August 2, 2010, Swig did not use the dirty mark on any goods
placed in interstate commerce.

186.
As of August 2, 2013, Swig drinks were only sold in Utah.
187.
Swigs mark was not in use in commerce as of the filing date of the used-
base applications, nor was it in use as of the date of first-use which was inserted in June
2015.
188.
Swigs mark should be cancelled for failing to put the mark into
commerce prior to its used-based application.

FOURTH CLAIM FOR CANCELLATION OF MARK
(Unclean Hands)
189.

190.
Counterclaim Plaintiffs are informed and therefore allege that the names
by which Swig calls its sodas infringe upon the trademarks of other companies and
individuals. Swig uses or has used the trademarked or protected names Fruit Loop, Jolly
Rancher, Ninja Turtle and Arnold Palmer to sell its own products.
50
191.
Swig also uses the dirty mark contrary to the grant issued by the
USPTO.
192.
The mark DIRTY as granted by the USPTO does not read on any beverages,
including soda, using coconut, syrups, fruit juice, fruit extract or fruit flavoring. Nor does it read
on any add-ins to beverages.
193.
The mark DIRTY specifically excludes the use of coconut in non-alcoholic
beverages, including sodas.

194.
Swig advertises Dirty as a soda with the addition of coconut.
195.
Swig sells DIRTY Dr. Peppers which consist of Dr. Pepper and coconut
syrup, and DIRTY Diet Cokes, which consist of Diet Coke and coconut syrup.
196.
Swig admits that the word dirty has always meant coconut to us.
Swig has made public statements to that effect, and continues to maintain this position
up to the present.
197.
Swig uses the mark dirty as a verb. Its founder repeatedly states that they
dirty up drinks by putting coconut in them.

198.
Swigs persistent and deliberate use of the mark to include and refer to
coconut in a soda is a blatant misuse of the mark and is grounds to cancel the mark.
199.
Sodalicious requests that Court cancel Registration No. 4,611,070 for
blatant, persistent and obdurate misuse of the mark.

FIFTH CLAIM FOR ABUSE OF PROCESS
200.

51
201.
In May 2015, Swig sued its then largest business competitor, Sodalicious.
Swig considers Sodalicious to be its fiercest competitor and arch rival.

202.
Sodalicious, on the other hand, asserts that it is not interested in Swig,
that it has never used Swigs business model except as an example of what not to do, and
has not taken, used or in any way assumed or appropriated any Swig intellectual
property.
203.
Sodalicious originated in an organic way, separate and independent of
Swig, through the efforts of two of its owners, Anne Auernig and Anna Kay Findlay.
204.
Counterclaim Plaintiffs believe and therefore allege that Swigs
trademark should never have been granted. When Sodalicious brought the false
representation in Swigs application of intent-to-use to Swigs attention, Swig tried to
cover up the false representation by changing dates and classification. And subsequently
filing suit against Sodalicious.
205.
Counterclaim Plaintiffs also believe and therefore allege that Swig used
civil process to squelch competition by suing Sodalicious and claiming that Sodalicious
impermissibly copied a business model.
206.
Counterclaim Plaintiffs believe and therefore allege that Swigs suit, in its
entirety, is nothing more than an improper use of the legal process to hobble its
competitors and to control market space through forcing Sodalicious to defend against
frivolous lawsuit.
207.
Swig initially sued only Sodalicious, the corporation for infringement of
trademark and trade dress.

52
208.
Counterclaim Plaintiffs believe and therefore allege that when
Sodalicious actually defended against the suit, Swig decided to increase the financial
pressure on Sodalicious by expanding the scope of the suit.
209.
On May 16, 2016, Swig amended its Complaint to add the owners of
Sodalicious in their individual capacity.

210.
The Second Amended Complaint tries to impose liability on the owners
of the company with no factual basis to support its claims. Counterclaim Plaintiffs
believe and therefore allege the Second Amended Complaint was filed without
reasonable inquiry into the facts supporting the allegations.
211.
Swig misused the civil process against the Auernigs and Findlays
primarily to accomplish a purpose for which it was not designed.

212.
Counterclaim Plaintiffs believe and therefore allege that Swig added the
Individual Defendants to the suit for the ulterior purpose of causing Sodalicious and its
owners to divert financial resources from the growth of the business and to increase
Swigs own market share by slowing the growth of Sodalicious.
213.
Counterclaim Plaintiffs have suffered harm and damages as a result of
this litigation in the form of the disruption of their professional and personal lives,
incurred legal fees and costs to defend a meritless lawsuit.
214.
As a result of Swigs Abuse of Process in this action, Counterclaim
Plaintiffs are entitled to an award of damages, including without limitation legal fees and
costs incurred and expending in defending this action and other such reasonable
damages, as the law may allow.
53
215.
Counterclaim Plaintiffs believe and therefore allege that Swigs actions
are malicious in that Swig seeks to destroy a competitor through frivolous litigation and
seeks to intimidate other small business owners from expanding into the market share,
seeks to discourage competition from businesses other than Sodalicious, and seeks to
discourage new businesses from entering the marketplace. Accordingly, Counterclaim
Plaintiffs are entitled to an award of punitive damages as well.
PRAYER FOR RELIEF
WHEREFORE, Counterclaim Plaintiffs pray as follows:
A. That the Plaintiffs Registration No. 4,611,070 be cancelled;
B. That the Court find that Swig abused civil process in the filing of its Complaint against
the corporate owners and award damages, including punitive damages;
C. That Defendants be awarded attorneys fees and costs for defending against Plaintiffs
lawsuit which was filed in bad faith;
D. For any other relief as determined fair and reasonable by the Court.
JURY DEMAND
Counterclaim Plaintiffs request a jury on all issues so triable.
RESPECTFULLY SUBMITTED this 12th day of August, 2016.
/s/ Tessa Meyer Santiago
Tessa Meyer Santiago
LINCOLN LAW, LLC
921 W. Center Street
Orem, UT 84057
Attorney for Defendants.
54
CERTIFICATE OF SERVICE
I, Tessa Meyer Santiago, do hereby certify under penalty of perjury that I filed a copy of
the foregoing Auernigs and Findlays Answer to Second Amended Complaint and
Counterclaims with the United States District Court for the District of Utah on August 12, 2016.
Copies were sent to the following parties via the methods identified below:
Mark Bettilyon
THORPE NORTH & WESTERN LLP
Counsel for Plaintiff Swig Holdings, LLC
(via ECF)
Dated this 12th day of June, 2016
/s/ Tessa Meyer Santiago

Tessa Meyer Santiago
55

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Case 2:15-cv-00307-DAK-DBP Document 66 Filed 08/12/16 Page 1 of 55

Tessa Meyer Santiago, #9324

IN THE UNITED STATES DISTRICT COURT

SWIG HOLDINGS, LLC,

DEFENDANTS ANNE AUERNIG,

a Utah limited liability company,

Case 2:15-cv-00307-DAK-DBP Document 66 Filed 08/12/16 Page 2 of 55

Defendants are without knowledge as to the facts alleged, therefore deny.

Admit Sodalicious is a Utah-based entity. Admit that Sodalicious opened a

location in The Village. Deny the remainder of the allegations.

resides in Utah County. Deny the remainder of the allegations.

Allegations need no response.

Case 2:15-cv-00307-DAK-DBP Document 66 Filed 08/12/16 Page 3 of 55

Defendants are without sufficient information to form a belief as to the truth of

paragraph 11 of the Complaint and therefore denies the same.

allegations of paragraph 18, Defendant is without sufficient information to form a belief as to

Case 2:15-cv-00307-DAK-DBP Document 66 Filed 08/12/16 Page 4 of 55

Defendants are without sufficient information to form a belief as to the truth of

paragraph 20; therefore, Defendants deny the same.

Defendants are without sufficient information to form a belief as to the truth of

paragraph 21 of the Complaint and therefore deny the same

Defendants are without sufficient information to form a belief as to the truth of

paragraph 22 of the Complaint and therefore deny the same.

Defendants are without sufficient information to form a belief as to the truth of

paragraph 23 of the Complaint and therefore deny the same.

Case 2:15-cv-00307-DAK-DBP Document 66 Filed 08/12/16 Page 5 of 55

Defendants are without sufficient information to form a belief as to the truth of

Defendants deny that there is anything unique, distinctive or readily identifiable

Defendants are without sufficient information to form a belief as to the truth of

paragraph 31 of the Complaint and therefore deny the same.

Defendants are without sufficient information to form a belief as to the truth of

paragraph 32 of the Complaint and therefore deny the same.

Case 2:15-cv-00307-DAK-DBP Document 66 Filed 08/12/16 Page 6 of 55

Defendants are without sufficient information to form a belief as to the truth of

paragraph 35 of the Complaint and therefore deny the same.

Case 2:15-cv-00307-DAK-DBP Document 66 Filed 08/12/16 Page 7 of 55

that Defendants use the Swig marks. Specifically,

Deny that Defendants sell any goods and services. Specifically,

Case 2:15-cv-00307-DAK-DBP Document 66 Filed 08/12/16 Page 8 of 55

Deny with regards to Sodalicious, and with regards to Defendants.

Deny with regards to Sodalicious and with regards to Defendants.

Admit, with regards to Defendants they have an ownership interest in

Defendants re-allege and incorporate their responses to paragraphs 1-46 of the

Second Amended Complaint as if set forth herein.

Case 2:15-cv-00307-DAK-DBP Document 66 Filed 08/12/16 Page 9 of 55

Defendants re-allege and incorporate their responses to paragraphs 1-55 of the

Second Amended Complaint as if set forth herein.

Defendants lack sufficient knowledge to form a belief as to the truth of the

allegations in paragraph 57, therefore deny.

Deny. Deny that Defendants ever used the Swig Marks.

confusion, deception, and mistake as alleged in the Second Amended Complaint.

The allegation states a legal conclusion; therefore, no response is required.

The allegation states a legal conclusion; therefore, no response is required.

Case 2:15-cv-00307-DAK-DBP Document 66 Filed 08/12/16 Page 10 of 55

Defendants re-allege and incorporate their responses to paragraphs 1-63 of the

Second Amended Complaint as if set forth herein.

Deny. Deny that Defendants ever used the Swig Marks.

The allegation states a legal conclusion; therefore, no response is required.

The allegation states a legal conclusion; therefore, no response is required.

Deny. Deny that Defendants ever used the Swig Marks.

Defendants re-allege and incorporate their responses to paragraphs 1-68 of the

Second Amended Complaint as if set forth herein.

Defendants are without sufficient information to form a belief as to the truth of