Let’s recap: For the past 13 years, Coca-Cola Co. has been attempting to capture the trademark for Zero. As in Coke Zero. Back in May of this year, the Trademark Trial and Appeal Board ruled in Coke’s favor and allowed the company to register numerous trademarks for its Zero product line. Coke’s rivals had suggested – quite logically – that zero was a generic term for zero calories beverages and shouldn’t be subject to trademark. The Board disagreed and held that Zero was basically tied up with Coke because Coke had spent billions of dollars promoting the brand and that Zero had “acquired distinctiveness when used as part of a mark for soft drinks.”
The upshot: Nobody can do Pepsi Zero. Or Dr. Pepper Zero. So, just yesterday, Dr. Pepper Snapple Group, the third largest soft drink company in the US, filed its appellate brief with the Federal Circuit. Dr. Pepper’s argument: Coke should not be granted an exclusive right to use the generic term zero. Dr. Pepper analogizes to the term diet: No soft drink company could claim a monopoly on the term “diet.”
I understand Coke’s position: Coke was really the first one to launch a “zero” line of beverages. And Coke has poured millions of dollars into promoting Coke Zero. I get it. But that alone does not mean that consumers necessarily associate the generic term “zero” with Coke. It’s hard to imagine that your average consumer would see Pepsi Zero or Diet Rite Pure Zero (seriously— Dr. Pepper wanted to register this as a mark) and think these were associated with Coke. It’s hard to see how Diet Rite Pure Zero could be trading on the popularity of Coke Zero.
So, after 13 years of fighting over the zero mark, it looks like the fight will keep going at least for another year or two.
Jonathan Pollard is a competition lawyer based in Fort Lauderdale, Florida. He has extensive experience litigating non-compete, trade secret, trademark and antitrust claims. He is the principal of a growing 6-lawyer litigation boutique. He has tried bench and jury trials to verdict and prosecuted numerous appeals in state and federal appellate courts. Routinely quoted in local and national media, Pollard has recently appeared in the Wall Street Journal, Bloomberg, FundFire, on PBS News Hour and more. For more information, call his office at 954-332-2380.