Royal Crown Company, Inc. v. Coca-Cola Co., No. 2016-2375
(Fed. Cir. Jun. 20, 2018)
The Federal Circuit remanded on the issue of whether COKE
ZERO and similar marks could be registered without a disclaimer, instructing
the TTAB to try again on the standard for genericity (which can include things
that are integral to a subset of the relevant goods/services). But I want to talk about an interesting bit
in the court’s discussion of Coca-Cola’s survey, which it found to be not very
probative of non-genericity. The survey
was old, but it also asked about the “associat[ion]” between ZERO and one or
more companies, not about source or sponsorship. “[T]his question is not
sufficient to demonstrate the public’s perception of the term ZERO; association
does not imply that a consumer would be confused by seeing a ZERO-branded
product under a different label, nor does it address what meaning consumers
attach to the term ZERO.” Nice language to cite against the more overreaching
surveys, although I recognize that the survey was trying to address secondary meaning rather than resulting confusion.
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