Why Coca-Cola's Fictional Lawsuit Against Coke Zero for Taste Infringement is a Losing Battle

Journal of Intellectual Property Law Volume 17 Issue 1 Symposium - The Changing Face of Copyright Law: Resolving the Disconnect Between 20th Century Laws and 21st Century Attitudes Article 9 October 2009 Why Coca-Cola's Fictional Lawsuit Against Coke Zero for Taste Infringement is a Losing Battle Jessica Nicole Cox University of Georgia School of Law Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Food and Drug Law Commons, and the Intellectual Property Law Commons Recommended Citation Jessica N. Cox, Why Coca-Cola's Fictional Lawsuit Against Coke Zero for Taste Infringement is a Losing Battle, 17 J. Intell. Prop. L. 121 (2009). Available at: https://digitalcommons.law.uga.edu/jipl/vol17/iss1/9 This Notes is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Cox: Why Coca-Cola's Fictional Lawsuit Against Coke Zero for Taste Inf NOTES WHY COCA-COLA'S FICTIONAL LAWSUIT AGAINST COKE ZERO FOR TASTE INFRINGEMENT IS A LOSING BATTLE JessicaNicole Cox * TABLE OF CONTENTS 122 I. INTRODUCTION II. BACKGROUND ............................................ 123 A. TRADEMARK PROTECTION GENERALLY ..................... 124 B. PROTECTION EXTENDED TO NONTRADITIONAL TRADEMARKS .......................................... 125 C. FLAVOR PROTECTION ATTEMPTED, BUT DENIED .............. 129 D. COCA-COLA'S PATH TO PROTECTION ........................ 130 ........................................... 1. Source Indication and Seconday Meaning ..................... 2. FuncionaliyDoctine ................................... 3. Likelihood of Confusion .................................. 4. GraphicalRequirement ................................... 131 132 135 137 III. ANALYSIS ................................................. A. SOURCE INDICATION AND SECONDARY MEANING ............. B. FUNCTIONALITY DOCTRINE ............................... C. LIKELIHOOD OF CONFUSION .............................. D. GRAPHICAL REQUIREMENT ............................... E. TASTE MARK CHALLENGES AND PROPOSED SOLUTIONS ........ 138 IV . CONCLUSION 145 ............................................. 139 140 142 144 145 J.D. Candidate 2010, University of Georgia School of Law. The author would like to thank Professor David E. Shipley, ProfessorJoseph Miller, and my fellowJournalmembersfor their help in creating and editing this Note. Additionally, many thanks to family and friends for their love and support throughout this process. Published by Digital Commons @ Georgia Law, 2009 1 Journal of Intellectual Property Law, Vol. 17, Iss. 1 [2009], Art. 9 J. INTELL PROP.L [Vol. 17:121 I. INTRODUCTION PHIL ROSE (Actor posing as a Coca-Cola Senior Brand Manager): "Do you think that we, as the Coke brand, would have a case against the Coke Zero brand ... for taste infringement? (Silence. No response.) What's your specialty?" LAWYER (Actual attorney who has no idea any of this is fake): "I am in real estate law." PHIL ROSE: "Perfect. Let's say this is a property. (Points toward the Coca-Cola can.) Architectural. It's been made a landmark. Next door somebody buys the lot and builds an eeriy similar house. What can we do there? Let's put on the lawyer pants and walk down that path."' In 2007, the Coca-Cola brand launched a marketing campaign based on an imaginary lawsuit for "taste infringement. ' 2 The advertisements jokingly posit that "Coke Zero stole the taste of Coke" and potential "victim[s] of taste confusion" are encouraged to seek legal representation.3 The premise of taste infringement, as stated by one attorney on hidden camera, is "the possibility that consumers will start drinking [Coke Zero] thinking they are drinking [CocaCola]." 4 The advertising campaign produced numerous viral video commercials and a website' Although these advertisements are intended as a joke to highlight how similar Coke Zero's taste is to that of Coca-Cola, the idea of taste infringement might have a plausible legal basis. Product color, sound, shape, and scent have each been afforded legal protection as nontraditional trademarks.6 With the ' Coke v. Coke Zero clip, http://www.youtube.com/watchV=PIOoODSnKoU (last visited Oct. 3, 2009) (on file with author). 2 Stuart Elliott, Can't Tell Your CokesApart?Sue Someone, N.Y. TMES, Mar. 5, 2007, available at http://www.nydmes.com/2007/03/05/business/media/O5adcol.html. 3 Id. ' Janet Conley, FrivolousLifigation:How Coke Punk 'd'ItsLauyers,FULTON COUNTYDAILY REP., Mar. 26, 2007, available at http://www.law.com/jsp/article.jsp?id=1174640633108 (view first commercial video clip featuring Michael J. Kline). ' See Elliott, supra note 2 (stating the advertising campaign "relies largely on new-media efforts like e-mail marketing, video clips posted to websites, and digital banner advertising"). 6 SeeIn re Owens-Corning Fiberglas Corp., 774 F.2d 1116 (Fed. Cir. 1985) (extending trademark protection to the color pink of "fibrous glass residential insulation'D; MGM/UA Entm't Co., Fed. TM Reg. No. 1395550 (filed Aug. 15, 1985) (extending trademark protection for the sound of a lion roaring); Hershey Chocolate & Confectionary Corp., Fed. TM Reg. No. 0186828 (filedJan. 17,1924) (extending trademark protection for the shape of a wrapped Hershey's Kiss candy with an attached paper tag); In re Clarke, 17 U.S.P.Q.2d 1238 (TT.A.B. 1990) (extending trademark protection for the https://digitalcommons.law.uga.edu/jipl/vol17/iss1/9 2 Cox: Why Coca-Cola's Fictional Lawsuit Against Coke Zero for Taste Inf 2009] TASTE INFRNGEMENT IS A LOSING BAT7LE broadening scope of trademark coverage for non-visual marks, it seems inevitable that the boundaries of trademark law will be challenged in the coming years, possibly to the point of protecting product taste. The Coca-Cola Company is the largest beverage producer in the world.7 The corporation's namesake beverage, Coca-Cola Classic (Coca-Cola), is a unique product with a distinct flavor. Over the years, consumers have been subjected to taste tests involving Coca-Cola to determine whether it is the premier cola beverage.8 If trademark status is extended to the flavor of Coca-Cola, a "taste infringement" lawsuit against other cola beverages could become a legal reality. Trademark protection for the flavor of a cola beverage is only possible if Coca-Cola can (1) demonstrate source indication or secondary meaning in the flavor and (2) prove that the flavor is not functional. This Note explains why Coca-Cola will not be able to protect its unique flavor through trademark law. Part II of this Note chronicles the development of trademark law and the broad scope of protection awarded to a variety of nontraditional trademarks. Previous attempts to trademark flavor, each unsuccessful (...truncated)