Coke Zero Trademark Battle for Nothing?

Yesterday it was revealed that Coca-Cola was replacing its Coke Zero line of soft drinks with a new drink called Coca-Cola Zero Sugar. This is an interesting development for trademark lawyers because Coca-Cola has been engaged in a years long fight over its ability to protect its trademark in the Coke Zero name. Coca-Cola was embroiled in a bitter trademark dispute with Royal Crown Company and Dr. Pepper/Seven Up, Inc. over whether the term "Zero" was generic for zero calorie soft drinks. Now, however, it appears that Coca-Cola is no longer interested in asserting trademark rights in the "Zero" term for zero calorie or zero sugar soft drinks. Coca-Cola claims that a reason for the change is that it wants the label to be as "clear and descriptive as possible." Coca-Cola is replacing Coke Zero. This is a striking admission for Coca-Cola that it doesn't consider "zero" to be a trademark and instead considers it a descriptor for the fact that its drink contains zero sugar. As trademark attorneys know, a descriptive trademark can only be protected if the trademark owner using the term in a trademark sense, that is, to act as an indicator of source, and can show acquired descriptiveness or secondary meaning. Coca-Cola's action is all the more surprising given it appears there are still several challenges pending at the Trademark Trial and Appeal Board (TTAB) with Coca-Cola opposing various "Zero" trademark applications. This is a classic example of marketing and legal at an organization being at cross purposes. But in any event, this seems to have been a wasted effort on the part of Coca-Cola for the last ten plus years. Coca-Cola's filings with TTAB indicate that it has spent hundreds of millions of dollars to promote its "Zero" brand so that it could claim trademark protection in this descriptive term. Now, however, in one statement, Coca-Cola has undone all of that marketing by admitting that it wants to use "Zero" not as a trademark but to simply describe that its drink contains zero sugar.

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