Coca-Cola is a giant in the beverage industry. If you said everyone in the world knows what Coke is, it may actually be true and not just an exaggeration. With such recognition and substantial marketing resources behind its zero calorie drinks like “Coke Zero”, “Sprite Zero” and “Powerade Zero”. Coke has finally convinced the United States Patent and Trademark Office (USPTO) to allow its trademark registration on the term “zero” in conjunction with its beverages. This grant comes in spite of Dr. Pepper’s protests that the term is a generic reference to zero-calorie drinks. The decision is limited however, and leaves the door open for Dr. Pepper to also register its “zero” products and pushes any future disputes into federal court.
This perhaps less than satisfying decision comes after nearly a decade of dealings with the USPTO. Coke originally filed a trademark application on “Coke Zero” in 2007. Dr. Pepper opposed Coke’s trademark application at the USPTO’s Trademark Trial and Appeal Board (TTAB), claiming that zero is a generic term and shouldn’t be exclusively held by one group. Exclusivity on zero would impact Dr. Pepper’s Diet Rite Pure Zero, forcing a name change. In response, Coke argued that its marketing efforts had created a customer association between zero and Coke. Establishing this secondary meaning, Coke argued, should entitle it to exclusive trademark rights.
Apparently, the evidence didn’t entirely back up Coke’s claim that customers associated “ZERO” with Coke or that other drinks’ use of zero caused any confusion as to the source of the beverage. In its decision, the TTAB stated that it was the entire brand name, i.e., Coke Zero or Diet Rite Pure Zero, which gave the marks their secondary meaning. But the TTAB didn’t completely ignore Coke’s impressive marketing and brand recognition. It said that Coke Zero had acquired distinctiveness and qualified as substantially exclusive. So where does that leave us?
Attempting to balance both interests, the TTAB declared that Coke was entitled to its trademark registration on Coke Zero, but that other groups, including Dr. Pepper, would be able to also register trademarks including the term zero. While Coke and Dr. Pepper may have each won something at the USPTO, if they want to continue their trademark disputes over the mark ZERO, they will need to settle it in federal court. The TTAB has made its decision and will now bow out. Interestingly, trademark officials in Canada and the UK denied Coke’s attempts to register zero.
This sort of “please everyone” decision may work or it may lead to litigation in federal court. Time will tell. Trademark issues can be complex and require significant expertise. If you have questions about the trademark process, please contact the attorneys at Trademark Access. Let our experience protect your valuable brand.