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Would You Like a Zero with That? Beverage Companies Battle Over Trademark Protection for “Zero”

July 9, 2018

Would You Like a Zero with That? Beverage Companies Battle Over Trademark Protection for “Zero”

Trademark law shows how significant power can be packed into even the most unassuming words. Take, for example, zero. The Coca-Cola Company and some of its competitors in the soft drink and sport drink industry have been battling over the use of zero in their product names. Does zero identify the source of a drink (brand), or does it describe a category or subcategory of drinks? That yet-unanswered question is at the core of the June 2018 decision from the United States Court of Appeals for the Federal Circuit in Royal Crown Company, Inc. v. The Coca-Cola Company (case no. 2016-2375).

When beverage maker Royal Crown sought trademark protection for the names Diet Rite Pure Zero and Pure Zero, it “disclaimed” the word zero, which is to say that Royal Crown conceded that zero alone did not identify the products’ source. Coca-Cola was not equally willing to disclaim zero with respect to its targeted trademarks, including Coke Zero, Sprite Zero, and Powerade Zero. Instead, Coca-Cola argued that its use of zero should be independently protected as identifying a family of products from Coca-Cola.

Remember, generic names are not protected under trademark law. For example, beverage companies cannot stake an exclusive claim to the generic word soda to describe their products. In the Royal Crown case, the Federal Circuit explained that zero is generic in combination with a beverage name if the public understands zero to refer to a group or sub-group of beverages with a particular characteristic. Coca-Cola hopes to prove, as the Federal Circuit has required, that zero triggers in the public a recognition of the drink’s source. Royal Crown will take the position that zero refers to a category of drinks with a certain characteristic: no or few calories or carbs.

The answer lies in contemporary public perception of zero among consumers. So what do you think, Mr. or Ms. Consumer? When you reach for a zero, are you getting a brand or a type of drink? Don’t ask me. I steer clear of artificial sweeteners altogether.

Michael Thomas with the law firm of Maschoff Brennan is an intellectual property attorney helping clients with planning, enforcement, and litigation of trademark rights. This article is not intended as legal advice. But a qualified trademark attorney is in a position to give it.