Is "zero" a generic term for calorie or carbohydrate free soda, energy drinks and sports drinks? That question is at the heart of a long running dispute concerning Coca-Cola's trademarks.
Coca-Cola's applications to register various "zero" trademarks, like COKE ZERO and SPRITE ZERO, were refused by the U.S. Trademark Office on the ground that "zero" is descriptive. Also, other beverage brands opposed those applications claiming that "zero" is not only descriptive, but also generic, so that it cannot function as a trademark for Coca-Cola. In 2016, the Trademark Trial and Appeal Board determined that "zero" is not a generic term for all of the relevant beverages, i.e. it would not describe drinks that contain significant calories or carbs. The Board also held, based in part on favorable survey evidence and sales data, that consumers have come to associate the term "zero" with Coca-Cola's products.
That decision was appealed. The Federal Circuit has now overturned the Board's ruling and remanded the case for further proceedings to determine if "zero" is generic and/or descriptive. The Court held that the Board should have considered whether "zero" is generic of a subset of beverages —those with few or no calories or few or no carbohydrates - rather than all beverages. The Court also held that Coca-Cola would need to provide more evidence to prove that it has acquired distinctiveness in "zero."
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