Everyone knows that Coke and Pepsi are rivals, but did you know that Coke also has been engaged in a battle with the Dr Pepper Snapple Group over the term ZERO?
For the past fifteen years, The Coca-Cola Co. (“Coca-Cola”) has been battling with Dr Pepper Snapple Group’s Royal Crown Company, Inc. and Dr Pepper/Seven UP, Inc. (“Royal Crown”) over Coca-Cola’s efforts to trademark the term ZERO. As most readers know, Coca-Cola uses ZERO in connection with numerous “zero calorie” soft drink beverages, including COKE ZERO, SPRITE ZERO, FANTA ZERO, PIBB ZERO and POWERADE ZERO.
Coca-Cola filed seventeen trademark applications for marks including the term ZERO with the United States Patent and Trademark Office. Royal Crown filed oppositions to the applications with the Trademark Trial and Appeal Board (“TTAB”), arguing that ZERO is merely descriptive of the products’ attributes and does not indicate the source of goods. It also argued that ZERO is a generic term and cannot be trademarked. Royal Crown also argued that Coca-Cola should be required to disclaim exclusive use of ZERO. The TTAB rejected Royal Crown’s arguments and on May 23, 2016, it decided that ZERO is not generic for the goods (soft drinks), Coca-Cola’s use of ZERO is substantially exclusive and ZERO has acquired distinctiveness in the soft drink market.
To make matters more confusing, Royal Crown also filed trademark applications to register PURE ZERO and DIET RITE PURE ZERO, but Royal Crown, unlike Coca-Cola, agreed to disclaim exclusive rights to the term ZERO. Although Coca-Cola opposed Royal Crown’s applications, the TTAB dismissed the oppositions and Coca-Cola decided not to appeal.
On June 20, 2018, the Federal Circuit Court dealt a heavy blow to Coca-Cola’s efforts to obtain its ZERO trademarks by overturning the TTAB’s dismissal of Royal Crown’s opposition to Coca-Cola’s trademark applications. In a 3-0 vote, the Court found that the TTAB failed to analyze properly whether ZERO is too generic to be trademarked. The Court also found that the TTAB erred in finding “acquired distinctiveness.”
Now, the case goes back to the TTAB for further proceedings. At this point, we do not know what the TTAB will decide—perhaps both soft drink manufacturers will be able to use ZERO. Stay tuned.