Dr Pepper fails to revive fight against Coca-Cola’s ‘zero’ at Fed Circuit

Dr Pepper will be unable to reignite a dispute with Coca-Cola, after it failed it overturn a US Trademark Trial and Appeal Board (TTAB) decision over its rival's 'zero' mark.

The  US Court of Appeals for the Federal Circuit dismissed the appeal, which centred around the use of the trademark ‘zero’ on beverages, as “moot” on August 3,  stating there was "no case or controversy" for the court to decide.

The 13-year old dispute began when Dr Pepper complained to the USPTO that Coca-Cola could not trademark drinks such as Coke Zero without a disclaimer on the label acknowledging that Coca-Cola does not own the trademark for the word ‘zero’ because the term was generic.

Coca-Cola argued that the word, when used as part of a beverage brand including Sprite Zero and Coca-Cola Zero, is exclusively associated with its products because of advertising and promotion. It added that when consumers see ‘zero’ on a bottle or can, they associate it with the company.

In May, 2016, the TTAB ruled that Coca-Cola does not have exclusive rights to the term ‘zero’, but granted it a trademark covering a line of soft drinks. Dr Pepper then appealed the decision to the Federal Circuit.

In 2018, the Federal Circuit overturned the TTAB decision based on Dr Pepper’s argument that ‘zero’ was generic and consumers understand the word to mean any drink with less than five calories. Coca-Cola responded by disclaiming any right to the word ‘zero’ in its trademark applications.

Dr Pepper challenged this motion claiming the board had failed to determine whether ‘zero’ was generic and, therefore, ineligible for trademark protection. It also argued that its appeal is not moot because “Coca-Cola never conceded that the term ‘zero’ is generic or merely descriptive,” and that “Coca-Cola may in the future apply for other zero-inclusive marks”.

On second appeal, the Federal Circuit acknowledged these concerns but stated that “such an interest is too speculative to invoke the jurisdiction of this court”.

Both companies have been contacted for comment.

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