Calorie-Free, but Not Opposition-Free: How the TTAB Decided a Major Trademark Opposition Dispute Between Coca-Cola and Dr. Pepper
In a recent opinion issued by the Trademark Trial and Appeal Board to settle a trademark opposition dispute between two U.S. beverage giants, U.S. trademark authorities have ruled that Coca-Cola does not have the exclusive right to use “zero,” although the Board did agree to register the word that Coca-Cola uses in association with some of their diet soft drinks and sports drinks.
Coca-Cola sought registration of the mark back in 2003 to protect its use in products such as Coke Zero, Sprite Zero, and Powerade Zero. In 2007, Dr. Pepper Snapple Group Inc. disputed the mark’s registration, arguing that “zero” was a generic term, and was being used to indicate that the beverages contained 0 calories. Dr. Pepper further argued that granting Coca-Cola the exclusive right to use the word would give them “a monopoly to use a common English word in its common English meaning.’’ Coca-Cola countered that because of its extensive marketing campaign, and because its sale of products labeled “zero” were far greater than those of their competitors, the Trademark Trial and Appeals Board should grant them the exclusive right to use “zero” in association with beverages so to avoid consumer confusion.
In response to these arguments, the Board issued a mixed opinion that has provided pathways for more legal challenges in the future. In a victory for Coca-Cola, the Board wrote that Dr. Pepper was unable to prove that “zero” is a generic term when used in association with beverages. The Board further wrote that Coca-Cola’s use of “zero” had “acquired distinctiveness” and qualified as “substantially exclusive.” In a small win for Dr. Pepper, the Board ruled that Coca-Cola was unable to prove consumer confusion with Dr. Pepper’s mark, Diet Rite Pure Zero, and because of this, Dr. Pepper could register the mark.
Although this ruling could largely be considered a win for Coca-Cola, the Board emphasized that this decision did not set a precedent and that any disputes that arose in the future over the use of “zero” in the beverage industry would have to be considered based on their own merits. Dr. Pepper Snapple Group has indicated that they are considering appealing the decision so to ensure that other beverage companies can freely use “zero.”
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For more information on this topic, please visit our Trademark Oppositions and Cancellations service page, which is part of our Trademark practice.
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