- Coca-Cola enjoyed a win when a three-judge panel on the U.S. Patent and Trademark Office trial and appeal board granted Coca-Cola rights to trademark the term "zero" for its products. But so can Dr Pepper Snapple Group, which challenged the trademark in 2007, and other companies, according to a written opinion the board issued Monday.
- The judges wrote Dr Pepper wasn't able to prove its argument that "zero" is a generic moniker that could not be trademarked. They also wrote that Coca-Cola "zero" beverage brands had "acquired distinctiveness" and fit as "substantially exclusive," so the trademark was permissible.
- However, the judges also wrote that Coca-Cola hadn't proven its argument that consumer confusion resulted from other brands that also use the term "zero," like Dr Pepper Snapple's Diet Rite Pure Zero. They said it was the full brand name rather than only the term "zero" that was "inherently distinctive." Therefore, DPS and other companies can trademark the "zero" term too.
If the (lack of) resolution wasn't diluted enough, the judges also wrote that their decision did not make a precedent. Any future disputes over the term "zero" were subject to individualized decisions. Coca-Cola told The Wall Street Journal that it was pleased with the decision.
Both companies still have the option of taking the other to federal courts to resolve the trademark infringement issue, even after those trademarks are registered. The courts may then consider the opinions from the trademark dispute board, but they are not bound to uphold them.
In this case, because the board explicitly said it didn't set a precedent, the outcome would not likely hold much sway in court, Jane Shay Wald, chair of the trademark practice at law firm Irell & Manell LLP, told The Wall Street Journal.
It hasn't been easy for Coca-Cola to trademark the term "zero." Trademark authorities in Canada and the U.K. already declined Coca-Cola's attempts at the mark (PepsiCo stepped in to oppose it).
This trademark is important for Coke: Coke Zero's sales growth is a bright spot in an otherwise ailing diet soda segment that has seen consistent mid to high single-digit sales declines in recent quarters.