By Gabrielle Sherwood| Editor: Tikwiza Nkowane| www.amdlawgroup.com
A three-judge panel on the U.S. Patent and Trademark Office Trial and Appeal Board (“TTAB”) granted Coca-Cola rights to trademark the term “Zero” for its soft drink products. This decision was a major victory for the company. Since 2003, Coca-Cola has been trying to win exclusive rights to the no-calorie beverage brand name-and they finally have.
There were many valid arguments against granting rights to trademark the term “Zero.” Notably, Dr. Pepper Snapple Group argued that “Zero” was generic for diet soft drinks, making the term unregistrable. Dr. Pepper Snapple Group also argued that Coke’s “Zero” has not acquired distinctiveness.
The TTAB rejected Dr. Pepper Snapple Group’s argument that “Zero” was a generic term for zero-calorie soft drinks. In the rejecting such argument, the TTAB took into account the billions of dollars in sales of Coke’s Zero Products. Such sales were used by the TTAB to show that consumers do not understand “Zero” to be generic for soft drinks. In other words, consumers do not use the term “Zero” to refer to the genus of soft drinks.
The TTAB also rejected Dr. Pepper Snapple Group’s argument that Coke’s “Zero” has not acquired distinctiveness. Simply stated, Dr. Pepper Snapple Group argued the mark “Zero” does not function as a source-identifying trademark. Again, the TTAB pointed to Coke’s billions of dollars in sales to reject such argument. Further, the TTAB also pointed to survey evidence. Such survey evidence illustrated that approximately 61 percent of consumers associated the term “Zero,” with just one company. The TTAB ultimately decided that the term “Zero” had acquired distinctiveness, and is therefore registrable as a descriptive mark.
Since the TTAB has granted Coca-Cola rights to trademark the term “Zero,” Coca-Cola has subsequently federally registered “Zero” for beverages and soft drinks. This means that no other company is able to use “Zero” on their own mark for beverages and soft drinks without risking trademark infringement. These competing companies are arguing that the inability to use “Zero” in relation to their own products, hurts their companies, and likely confuses consumers.
Recently, PepsiCo trademarked the word “bubbly” for its new sparkling water drink. It seems as if PepsiCo may just be following in Coca-Cola’s footsteps. Looking forward, it is evident that Coca-Cola’s competitors are going to continue arguing that Coca-Cola should have to disclaim “Zero” from its trademarks.