Dr. Pepper’s opposition to Coke’s “zero” marks

Dr. Pepper’s effort to challenge Coca-Cola’s 17 trademarks over "zero" drinks received new life recently as a Washington appeals court overturned a May 2016 dismissal of Dr. Pepper’s case.

This decision is the latest event in Dr. Pepper’s decade long fight against Coca-Cola’s ability to claim exclusive trademark rights over the term "zero" in connection with its zero-calorie beverages. Dr. Pepper’s position is that the term is too generic to acquire trademark protection.

In 2016, the US Patent and Trademark Office’s Trademark Trial and Appeal Board determined that the term "zero" had acquired distinctiveness when used to sell Coca-Cola, which would have had the effect of preventing Dr. Pepper from using the term in its no-calorie Diet Rite Pure Zero, and other competitors from marketing similar drinks. However, the U.S. Court of Appeals for the Federal Circuit held that the Board had erred in failing to consider whether consumers viewed the mark as being a descriptive term rather than distinct to Coca-Cola.

In Canada, Coca-Cola has registered trademarks over "Coca-Cola Zero", "Powerade Zero", "Below Zero", "Sprite Zero", "Coke Zero", and "Diet Sprite Zero". It did attempt to register a trademark for "Zero" in 2008, but was refused in 2016 after statements of opposition were filed by PepsiCo.

For more information, see: Reuters; Bloomberg and the National Law Journal.

Authors: Jaclyn Tilak, Larissa Fulop and Daniela Cerrone, 2018 Summer Student-at-law