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Does Coke Have 'Zero' Chance in Trademark Lawsuit?

By William Vogeler, Esq. on June 27, 2018 | Last updated on March 21, 2019

There's a word for what the U.S. Federal Circuit Court of Appeals said in Royal Crown Company v. The Coca-Cola Company. It's "zero."

Of course, the decision is much more complicated but still came down to the same word. Basically, the appeals court zeroed out a trademark decision regarding the term.

The Federal Circuit said the Trademark Trial and Appeals Board erred in framing the genericness of the term and sent the case back for further consideration. For Coca-Cola, it's back to zero.

Back to Zero

Royal Crown, like Coca-Cola, makes all kinds of beverages. Both manufacture and distribute drinks that use "ZERO" as an element of their marks.

Here's just a taste of 17 Coke marks: Coke Zero; Coca-Cola Zero; Cherry Coke Zero; Vanilla Coke Zero. Royal Crown has a shorter list: Diet Rite Pure Zero and Pure Zero.

Royal Crown challenged Coke's marks, saying "ZERO" is generic. The board disagreed, in part because of the "magnitude" of Coke's marketing and branding of the term.

The Federal Circuit said the board failed to look at it from the public's perspective. But because it's trademark law, it was not that simple.

Descriptiveness Burden

The appeals panel said the board also should have considered the mark's descriptiveness and found an appropriate burden of proof.

"Absent such a finding, it is not possible for us to review on appeal whether the evidentiary record can support the Board's finding of acquired distinctiveness," the court said.

As a result, the judges vacated the board's decision and sent the case back to ... square one.

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