The Coca-Cola Company is in federal court this month trying to defend the phrase “zero” from being declared generic by the U.S. Court of Appeals for the Federal Circuit.

Coca-Cola already owns a trademark for Coke Zero but is now in court to fight against Royal Crown Cola’s claims that the term “zero” has become a generic term that describes zero-calorie or diet-soda beverages.  Coca-Cola argues that there is no evidence that the phrase has become generic.

In trademark law, famous brand owners must often worry about the popularity or pervasiveness of a product rendering their trademark generic.  Famous examples of trademarks that became generic are “aspirin,” “Xerox,” and “escalator.”  More recently, some experts have argued that “Google” as a trademark has the potential to become generic as more and more users have begun to use the trademark as a verb, and the phrase “Google it” has become synonymous with research via the Internet.

Currently, Coca-Cola is arguing that while they have no issue with other soda companies using the term, they should not have to be required to disclaim it.  This is a tricky position as Coca-Cola is then forced to argue that “zero” as part of their trademark deserves protectible rights, while admitting that they have no intention on prohibiting competing companies from utilizing the term.  This argument was particularly relevant as Coca-Cola admitted before the court that they had only served one cease-and-desist during the long tenure of the product and had no intention of serving others.

While the federal court seemed to agree that Coca-Cola had recognizable rights in “Coke Zero,” the judges questioned whether the company should be allowed to bar other beverage companies from utilizing the term “zero.”  While the competing companies acknowledged that it was mostly due to Coca-Cola’s successful advertising campaigns that consumers now relate “zero” to zero calories in soda, these competing companies argued that the inability to use “zero” in relation to their own products would devastate their companies and potentially confuse consumers.  As an example of the popularity of zero-calorie soda drinks, Royal Crown presented evidence that they had already sold over 1.8 billion ounces of their own “Diet Rite Pure Zero” soda-product in a span of five years.

As such, Coca-Cola’s competitors argue that Coca-Cola should have to disclaim “zero” from its trademarks.

For more information on this topic, please visit our Trademark Litigation service page, which is part of our IP & Business Litigation Practice.

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