This week’s trademark article is about one of my favorite sodas currently on the market. It has that unmistakable Coca-Cola taste with none of the high fructose corn syrup that makes you fat. Honestly, I have no idea why someone would choose to buy Diet Coke when Coca-Cola Zero is readily available and has so much more flavor and sweetness. To me, Diet Coke is basically just fizzy water with just a hint of cola flavor. If I go to a restaurant or fast food joint that offers Coke products but not Coca-Cola Zero, I always have to mix Diet Coke and Coca-Cola together so that I don’t consume a thousand calories of soda with the 4-5 free refills I’m sure to order. Hey, I can’t help it. I like soda. I could have worse addictions, you know.
On March 4, 2005, The Coca-Cola Company filed a trademark application seeking to federally register the trademark COCA-COLA ZERO for “beverages, namely soft drinks; syrups and concentrates for the making of the same.” The trademark examining attorney assigned to review the application requested that Coca-Cola submit a disclaimer of all exclusive rights in the word “ZERO” based on her belief that it is merely descriptive when used in connection with soda that contains zero calories. Instead of just entering the disclaimer like most companies would have, Coca-Cola argued that “ZERO” has “no fixed and discernible meaning that would be readily apparent to a potential buyer” and that a “multistage reasoning process is necessary to ascertain which ingredient (or ingredients) is not present” in Coca-Cola’s soft drink. Question: Do you find Coca-Cola’s statements as insulting to the intellectual abilities of its customers as I do? “Multistage reasoning process?” You’ve got to be kidding.
After the examining attorney picked herself off the floor from laughing so hard at Coca-Cola’s feeble arguments, she again requested that Coca-Cola enter a disclaimer of “ZERO” into the application record. This time, Coca-Cola essentially conceded that “ZERO” is descriptive but that it had acquired distinctiveness or “secondary meaning” in the minds of consumers such that they now associate “ZERO” exclusively with Coca-Cola and perceive it as a trademark that identifies and distinguishes Coca-Cola’s products from those offered by other beverage manufacturers. Although the examining attorney initially rejected Coca-Cola’s claim of acquired distinctiveness, she ended up actually approving the trademark application for publication after Coca-Cola submitted evidence showing the impressive sales of the COCA-COLA ZERO product, significant advertising expenditures, and extensive unsolicited media coverage.
Well, apparently some of Coca-Cola’s competitors were paying close attention to the federal trademark records in August 2007 because Royal Crown Company (maker of Diet Rite soda) and Companhia de Bebidas das Americas – AMBEV (a Brazilian soft drink manufacturer) filed trademark oppositions against Coca-Cola’s application for COCA-COLA ZERO on the basis that the mark is not entitled to registration without a disclaimer of the word “ZERO.” Both of the opposers note in their oppositions that “zero” is a highly descriptive term in the beverage industry and express concerns that Coca-Cola will attempt to interfere with the legitimate use of the word “zero” by Coca-Cola’s competitors to describe attributes of their beverages. In fact, Coca-Cola has already filed oppositions against a number of trademark applications for marks that incorporate “zero,” including PURE ZERO and DIET RITE PURE ZERO (owned by Royal Crown), LESS THAN ZERO, ZERO IS GOOD, SKINNY WATER ZERO, DOUBLE ZERO, and NATURALLY ZERO. As of today, the oppositions filed by Royal Crown Company and Companhia de Bebidas das Americas – AMBEV are still pending but we should have a decision by the Trademark Trial and Appeal Board within the next few months.
In my humble opinion, I think the trademark examining attorney should have stuck to her guns and forced Coca-Cola to appeal her refusal to register COCA-COLA ZERO without a disclaimer of “ZERO.” It looks to me like she got overwhelmed by the almost 100 pages of arguments and evidence Coca-Cola submitted in support of its position and failed to consider the real-world impact on Coca-Cola’s competitors of allowing Coca-Cola to claim exclusive rights in such an incredibly descriptive word. I don’t know about you, but I feel that “zero” is essentially the same as saying “diet,” “lite,” “light,” or “free” when you’re talking about a product not containing calories or certain ingredients. There’s no way a company would be entitled to exclusive rights in those terms, so why should “zero” be treated any differently?
Having said that, PepsiCo owns a federal trademark registration for the mark PEPSI ONE. The PEPSI ONE soft drink only has one calorie per eight ounce serving. But, the registration does not include a disclaimer of the word “ONE.” On the other hand, Dr. Pepper/Seven Up, Inc. is the owner of a federal trademark registration for DR PEPPER TEN. The DR PEPPER TEN soda has ten calories per can. And, the registration does include a disclaimer of “TEN.”
Please excuse this trademark attorney while he beats his head against a wall in frustration.