Trademark Battle Bubbles up over “Zero”

Last month, Judge Kathleen O’Malley of the U.S. Court of Appeals for the Federal Circuit gave Coca-Cola rival Dr. Pepper Snapple Group Inc. renewed hope in the trademark fight over “Zero.”

The Appeal

As reported by Bloomberg, Royal Crown Co., a subsidiary of Dr. Pepper, is legally challenging Coca-Cola’s claim to 17 trademark registrations with the word “Zero,” such as in its products Coke Zero, Sprite Zero and Pibb Zero.

“The rival drinkmaker argued that the term Zero is generic and consumers understand the word to mean any drink with less than 5 calories.”

More specifically, per Patenly-O, Royal Crown claimed that because “Zero” is a generic term and simply descriptive of a feature of the goods, Coca-Cola should be required to disclaim the term.

The Trademark Trial and Appeal Board (TTAB), however, previously sided with Coca-Cola, which, as Patenly-O points out, claimed the “Zero” term had acquired distinctiveness under Section 2(f) of the Lanham Act.

Trademark Considerations

TTAB’s decision was incorrect, according to Judge O’Malley, because the board didn’t consider whether consumers consider “Zero” either a descriptive term or distinctive to Coca-Cola’s brand. Now the board has to reexamine the term.

Patently-O clues us in on what Coca-Cola’s trademarking plan may be:

“Coke could register these marks if it disclaimed protection to ZERO alone.  However, it appears that Coke is looking to use these marks as a stepping-stone for prohibiting any other ZERO soft drinks.”

In 2017, we posted John Deere Plows Ahead with Trademark Win, in which Deere & Co. used the Lanham Act in its defense.