A reconsideration has been allowed in a bitter branding battle between Coca-Cola and Dr. Pepper over the distinctiveness of the mark ‘Zero’. The opportunity was granted by the U.S. Court of Appeals for the Federal Circuit this week and will allow 17 of Coca-Cola’s trademark registrations to be challenged.
Coca-Cola’s rivals argue that the term Zero is a generic term known by consumers to mean less than 5 calories, instead of being specific to the brand. The company owns a family of Zero trademarks including Coca-Cola Zero, Sprite Zero, Fanta Zero, Powerade Zero, and Full Throttle Zero.
Circuit Judge Kathleen O’Malley said that the Trademark Trial and Appeal Board had “erred” in a case brought by the Royal Crown Co., a Dr. Pepper subsidiary, for failing to consider whether consumers perceived the mark as being a descriptive term as opposed to a distinct brand relation with Coca-Cola.
Royal Crown said it has no objection to registered trademarks for Coke Zero or Sprite Zero, as long as Coca-Cola makes clear that it isn’t claiming the right to the word “Zero.” However, if Coca-Cola wins the case, it may limit other beverage companies to receive trademark protection over low-calorie drinks.