The 'Coke Zero' Trademark Madness May Finally Be Coming To An End

Did you know that Coca-Cola has been attempting to get a trademark on the word "zero" for beverages in the United States for well over a decade? Yes, the most well-known soft-drink maker, which sells a product called 'Coke Zero', first filed for a trademark on the single word in 2003. The fight has been ongoing ever since, with Dr. Pepper Snapple Group opposing the trademark, because, well, lots of other beverage companies use that common word and because of course it did. Oddly, we covered a trademark case a few years back in which Coca-Cola was on the receiving end of a trademark suit over its use of the word, that time from a water company that offered a product it had named 'Naturally Zero.' Of note was Judge John Lee's justification for siding with Coca-Cola in that case:

U.S. District Judge John Lee said that the “Naturally Zero” label straightaway conveys to consumers that the product is without calories or additives, and therefore not suggestive enough to supply a trademark that is inherently distinctive for a beverage label.

That opinion appeared to be a sign of things to come. Coca-Cola had lost its bid to trademark the word "zero" in the U.K. after regulators sided with Pepsi Co.'s opposition. Just weeks ago, as well, the Canadian Intellectual Property Office rejected Coca-Cola's application entirely, reasoning that the use of the word zero was descriptive of the caloric content of the drink. These rulings, along with ongoing challenges by Coke to others using the word for beverage products, have become the setting for what will be an upcoming ruling by the U.S. Trademark Office, which should finally put to rest the dispute between Coke and Dr. Pepper.

Arguments wrapped up in December, after Coke and Dr Pepper logged hundreds of pages of arguments and exhibits in 170 filings with the U.S. trademark office. A ruling could come before the summer, based on past trademark registration disputes, say people familiar with the case.

If Coke prevails, it could more easily sue imitators. If it loses, it could face an onslaught of competitors such as Dr Pepper's Diet Rite Pure Zero, who take the name and dilute a brand that has turned out to be a star for Coke in a game that has been rough going.

I would contend that the above is improperly written, as the barrage of oppositions from and against Coke suggests the onslaught of competition already exists. That should have been expected, because we're talking about the word "zero" here, and in an industry rife with no-calorie drinks, how could that word not be in common usage?

More interesting to me will be to see how the USPTO ruling lines up with our neighbors in the world. There seems to be little sense in arguing anything other than that the word "zero" ought to be free for use rather than locked up behind trademark protections. Should the USPTO rule differently, however, it will serve as a nice and tidy example of just how crazy the office is in leaning towards protectionism as a rule.

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