U.S. Court Revives Dr Pepper's Challenge To Coca-Cola 'Zero' Drinks

By Steve Wynne-Jones
Share this article
U.S. Court Revives Dr Pepper's Challenge To Coca-Cola 'Zero' Drinks

A U.S. appeals court has revived Dr Pepper Snapple Group Inc's challenge to Coca-Cola Co's efforts to register trademarks for soft drinks and sports drinks whose names contain the word 'zero'.

By a 3-0 vote, the Federal Circuit Court of Appeals threw out a May 2016 dismissal of much of Dr Pepper's decade-old case, saying a U.S. trademark review board failed to properly analyse whether 'zero' was too generic to be trademarked.

What's In A Name?

Multiple companies sell beverages with the 'zero' name, which often denotes an absence of calories or carbohydrates.

The ability to market products effectively is important to beverage makers trying to counteract declines in U.S. sales of carbonated soft drinks since their mid-2000s peak.

Lawyers for Coca-Cola and Dr Pepper did not immediately respond to requests for comment. The companies did not immediately respond to similar requests.


Range Of Products

Coca-Cola has used the 'zero' name on such products as Cherry Coke Zero, Sprite Zero, Powerade Zero, and more recently Coca-Cola Zero Sugar.

The Atlanta-based company's effort to register U.S. rights to 17 drinks with the word 'zero' prompted a 2007 challenge by Dr Pepper, whose products include Diet Rite Pure Zero.

Coca-Cola argued that such names could confuse consumers.

In 2016, the U.S. Patent and Trademark Office's Trademark Trial and Appeal Board said 'zero' had "acquired distinctiveness" when used to sell Coca-Cola soft drinks.


The board cited a 2008 survey offered by Coca-Cola in which 61 percent of consumers associated the word 'zero' with one company, as opposed to 6 percent for the word 'diet'.

But the board also said Plano, Texas-based Dr Pepper could trademark Diet Rite Pure Zero because only full brand names, not the word 'zero' by itself, were "inherently distinctive."

Dr Pepper's appeal sought to force Coca-Cola to "disclaim" the term 'zero', broadly freeing rivals to use it.

Wrong Approach

In Wednesday's decision, Circuit Judge Kathleen O'Malley said the trademark board used the wrong legal approach to assess whether consumers thought 'zero' generically described low-calorie or low-carbohydrate drinks.


She also said Coca-Cola failed to counteract "numerous sources of evidence" from Dr Pepper about how companies used the word, and that the passage of time made the 2008 survey's current usefulness "questionable."

The case was returned to the trademark board for further proceedings.

News by Reuters, edited by ESM. Click subscribe to sign up to ESM: European Supermarket Magazine.

Get the week's top grocery retail news

The most important stories from European grocery retail direct to your inbox every Thursday

Processing your request...

Thanks! please check your email to confirm your subscription.

By signing up you are agreeing to our terms & conditions and privacy policy. You can unsubscribe at any time.