Tennessee distillery wants Pepsi to allow booze producers to use 'Mountain Dew'

PHOTO: Bottles of PepsiCo Inc. Mountain Dew brand soda are displayed for sale inside a convenience store in Bagdad, Ky.,Feb. 11, 2018.PlayLuke Sharrett/Bloomberg via Getty Images
WATCH PepsiCo opposes distillery's efforts to trademark 'Mountain Dew'

Ole Smoky Moonshine, a Tennessee distillery locked in a legal battle with PepsiCo over use of the term "Mountain Dew," filed a motion on Monday to allow any company to use the phrase for alcoholic beverages.

The distillery has been in a legal battle with one of the world's largest food companies since shortly after Ole Smoky filed an application to trademark "Ole Smoky Mountain Dew Moonshine" for distilled spirits in 2015. PepsiCo officially filed a Notice of Opposition with the Trademark Trial and Appeal Board in 2016 -- the most recent motion filed.

According to the motion for a disclaimer filed to the U.S. Patent and Trademark Trial and Appeal Board, Ole Smoky would like to "disclaim the entire phrase 'MOUNTAIN DEW MOOSHINE,'" which would cause Ole Smoky to "not need to argue it has acquired exclusive rights in MOUNTAIN DEW for distilled spirits."

"It only makes sense that [the term 'Mountain Dew'] be shared amongst distillers," Ole Smoky founder Joe Baker told ABC News.

PHOTO: Products on display at the Ole Smoky station at the Grand Tasting presented by ShopRite featuring during the Food Network New York City Wine & Food Festival Presented By FOOD & WINE at Pier 94, Oct. 19, 2014, in New York. Neilson Barnard/Getty Images for NYCWFF
Products on display at the Ole Smoky station at the Grand Tasting presented by ShopRite featuring during the Food Network New York City Wine & Food Festival Presented By FOOD & WINE at Pier 94, Oct. 19, 2014, in New York.

In a bid to speed up the decision, Ole Smoky asked the TTAB grant the motion so "resources can be conserved by not having to litigate ... specific issues."

If the TTAB waits until all pending litigation is over to decide on whether to grant the disclaimer, "any benefit of simplifying the issues for trial would be lost because all of the issues would have already been addressed and litigated during the trial period," Ole Smoky said in the motion.

Baker said Ole Smoky decided to file the motion to disclaim Mountain Dew after hearing from others in the distilling community.

"The term Mountain Dew is not a term we believe should be exclusively owned and used by Ole Smoky ... and we've decided to try to move to establish the term as a descriptive and general term for what moonshine is," Baker said.

Moonshiners argue "Mountain Dew" is a synonym for moonshine, and some point that dictionaries, such as Merriam-Webster, also note that "Mountain Dew" is known as moonshine.

PHOTO: Bottles of PepsiCo Inc. Mountain Dew brand soda are displayed for sale inside a convenience store in Bagdad, Ky.,Feb. 11, 2018. Luke Sharrett/Bloomberg via Getty Images
Bottles of PepsiCo Inc. Mountain Dew brand soda are displayed for sale inside a convenience store in Bagdad, Ky.,Feb. 11, 2018.

"We would like to be able to use what has historically been, and even defined as Mountain Dew" in the dictionary, Baker said. He added, "'Mountain Dew' is a phrase all moonshiners and people of the Appalachian region are fond of. ... It would be wonderful to see other distillers making moonshine products ... enjoy the celebration of the name 'Mountain Dew' alongside Pepsi's soda."

PepsiCo did not respond to a request for comment from ABC News.

Baker remains hopeful that Ole Smoky, PepsiCo and the TTAB can come to an agreement on the motion to disclaim "Mountain Dew."

"I hope that our lawyers and Pepsi can reach some type of amicable solution that allows everybody to celebrate the history [of 'Mountain Dew']," Baker said.

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