Tag Archives: Coca-Cola

Best of 2010: “Drive-by infringement”

Originally posted 2014-02-10 15:10:18. Republished by Blog Post Promoter

The last couple of weeks of the year or so I always re-post, with typical humility, the “Best of 2010.”  I arrange it in a sort of month-by-month recapitulation.  It’s like having your whole life passing before your eyes right before you die, only you aren’t going to die.  Yet.

This year is no different.  But it’s better, see?  Because I’m going to start even earlier!  I’ll still do the month-by-month, but not until starting next week, see?  This week what I’ll do to avoid having to write new posts is … re-run some other ones!   In no special order.  Ones I like.  Great ones.  Best ones.  Well, ones with a lot of words and pictures that took so much work to put together in the first place that maybe if someone reads them this time I’ll feel a little better about it.

On the merits, this post full of words and pictures (and captions on the pictures — do you …. people … pay no attention at all?!) should have caused a societal sensation when it was first published on May 4, 2010.  Inexplicably, it didn’t.  This is your second chance, society. 

Coca-Cola Host of the Highways

Commuter Host

Steve Baird says initial interest confusion is “the real thing” and in the process  seeks to “add life” to Professor McCarthy’s famous “evil highway road sign” analogy:

Wagner's Coca Cola SignWhatever the criticisms might be to the doctrine of Initial Interest Confusion, including those detailed by our friends Ron ColemanMarty Schwimmer, and Eric Goldman, in the context of keyword advertising, the road-side restaurant sign shown [at left] definitely is “the real thing” for purposes of trademark initial interest confusion, in more ways than one:

It does depict the Coca-Cola brand, in all its glory, after all, so It’s The Real Thing, by definition.

And, unlike the very hypothetical scenario relied upon in the Wolf Appliance case, the above drive-in restaurant signage is real world and in current use, designed to attract attention, and has been for years, in fact, well after the business responsible for the sign dropped Coca-Cola for Pepsi. That’s right, “no Coke, Pepsi.” To twist Sean Penn’s words in I Am Sam, Wagner’s change was a “very bad choice,” at least in my humble opinion of taste.

Yeah, me too.  I used to think I liked Pepsi better.  Crazy!  It’s one more reason Steve and I are likethis.  More: Read More…

Some people think this is some kind of joke

Originally posted 2010-03-19 09:43:26. Republished by Blog Post Promoter

And it isn’t the lawyers!

Tastes So Much Like Coke We Should Sue Ourselves

Pointy-hat-tip to IP Notions.

 

Best of LIKELIHOOD OF CONFUSION®: Nuts to us? Or a “real” Charlie Brown Christmas?

Originally published December 9, 2009. Now a heartwarming tradition of bloggy goodness.

Instapundit links to this item about the incredible shrinking Charlie Brown specials — warmly-remembered favorite scenes from the annual Peanut broadcasts being incrementally excised from annual broadcasts to make room for more and more commercials.  And now, being today and all, all this can be confirmed by any diligent dork who takes the time to line up the store-bought DVD versions against the Hulu streams of the TV broadcasts.

This last fact not only boggles the middle-aged mind as to how profoundly the world has changed for media.  It also completely encompasses how and why, just as video killed the radio star, digital entertainment and its consumer-pleasing qualities spell doom for the mainstream media as we knew it.   The once-Red-Baron-like power of Big Media over its customers increasingly looks much more like Snoopy hanging for dear life onto his bullet-riddled Sopwith Camel as it plummets into the marshes of rural Gaul.

Blu Christmas

Blu Christmas

Being as famously narrow-minded as I am, LIKELIHOOD OF CONFUSION®‘s reaction on scanning these posts not only evoked bittersweet recollections of bygone December evenings on East 12th Street staying up “late” to watch “Charlie Brown” on the big (19″) black and white Zenith, but all kinds of IP questions as well.

Most of these questions were dumb.  Is there not some kind of copyright issue when you take a work that originally runs 24 minutes and whittle it down to 22, 21, 20, or whatever?  Maybe; but surely the complex network of licenses, assignments, waivers, distribution agreements and the printing of Chanuka gelt that was Charles Schulz’s most impressive legacy covers that.  (Maybe an entertainment lawyer can tell me different.  Gordon Firemark, are you out there?)

I did find this comment at the original post interesting, however, from a trademark point of view.  It’s in response to the listing of scenes cut from the “A Charlie Brown Christmas” broadcast, which includes, “Gone was Linus using his blanket as an improvised slingshot to knock a can off the fence no one else can hit, complete with ricochet sound effect.”  Says commentator “Mythilt”:

Wasn’t the can that Linus knocked off a Coke can? I don’t know about the other parts (and agree that if they cut them it’s a travesty).  However I seem to recall reading that the can on the fence was cut a long time ago when Coca-Cola stopped sponsoring the special . . .

Ooh — disappeared product placement?  It’s not unheard of.   Read More…

De gustibus non est disputandum

Russo NY Pizzeria

Russo to Judgment?

The question, per last fall’s story, was this: Can you establish trademark rights in a flavor?  The court said, unsurprisingly, “no.” As usual, I let someone better inclined to do so do the heavy lifting first — and who better than Eric Goldman?

[A]pparently Russo’s New York Pizzeria restaurant chain–which is from Texas, not New York, despite its name–. . . sued a rival chain, Gina’s Italian Kitchen, for taste infringement. Russo’s claimed trademark rights in how its food tasted, and it said the rival chain copied that taste. Fortunately for the rival chain . . ., a federal court found Russo’s claim “half-baked” (the judge’s words, not mine). Typically, trademarks are words or logos associated with a marketplace offering, such as the Coca-Cola name or its swoosh logo. However, in limited circumstances, a product’s features (in addition to the product’s “brand”) also may be protected as trademarks when consumers view those features as signals of the product’s source.

Given the expansive view of what’s potentially trademarkable, it’s not ridiculous to think that a food’s flavor could qualify for trademark protection. However, no matter how consumers view a product feature, the feature isn’t trademarkable when it is “functional,” i.e., “if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.” In the case of food, flavor will almost always be functional. As this court explains:

The main attribute of food is its flavor, especially restaurant food for which customers are paying a premium beyond what it would take to simply satisfy their basic hunger needs….NYPI does not allege that its supposedly unique flavoring is merely an identifier, and any such allegation would be implausible given that the flavor of pasta and pizza has a functional purpose.

Tick Tock Diner

We never close.

Right.  Good, except for Eric’s distressing repeated use of “trademark” as a verb.  But, on the merits, right, yeah? It seems that way.  Two practical concerns, after all, seem to militate heavily against “tastemarks.”

One, as Eric points out, is “the competitive implications if we allowed trademark protection for flavors. The first food vendor to popularize a flavor would get the perpetual rights to prevent all others from replicating the flavor.”

Another problem, as Robert Zelnick from McDermott Will & Emery LLP notes in this article, is enforceability.  “It’s hard to imagine how a subtle variation in a recipe for any of those dishes could be protected as a trademark,” he says. All true, but I’ve got a hankering for more on this question of trademarks for flavors.  Let’s take another look at the ingredients baked into this decision:

If the hurdle is high for trademarks when it comes to the flavor of medicine, it is far higher—and possibly insurmountable—in the case of food. People eat, of course, to prevent hunger. But the other main attribute of food is its flavor, especially restaurant food for which customers are paying a premium beyond what it would take to simply satisfy their basic hunger needs. The flavor of food undoubtedly affects its quality, and is therefore a functional element of the product.

Pull up a chair while we consider this analysis. And keep in mind that in this opinion, the court is splitting hairs.  So we can do that, too. Read More…

Best of 2009: Nuts to us? Or a “real” Charlie Brown Christmas?

Originally published December 9, 2009.

Blu Christmas

Blu Christmas

Instapundit links to this item about the incredible shrinking Charlie Brown specials — warmly-remembered favorite scenes from the annual Peanut broadcasts being incrementally excised from annual broadcasts to make room for more and more commercials.  And now, being today and all, all this can be confirmed by any diligent dork who takes the time to line up the store-bought DVD versions against the Hulu streams of the TV broadcasts.

This last fact not only boggles the middle-aged mind as to how profoundly the world has changed for media.  It also completely encompasses how and why, just as video killed the radio star, digital entertainment and its consumer-pleasing qualities spell doom for the mainstream media as we knew it.   The once-Red-Baron-like power of Big Media over its customers increasingly looks much more like Snoopy hanging for dear life onto his bullet-riddled Sopwith Camel as it plummets into the marshes of rural Gaul.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

Being as narrow-minded as I am, LIKELIHOOD OF CONFUSION®‘s reaction on scanning these posts not only evoked bittersweet recollections of bygone December evenings on East 12th Street staying up “late” to watch “Charlie Brown” on the big (19″) black and white Zenith, but all kinds of IP questions as well.

Most of these questions were dumb.  Is there not some kind of copyright issue when you take a work that originally runs 24 minutes and whittle it down to 22, 21, 20, or whatever?  Maybe; but surely the complex network of licenses, assignments, waivers, distribution agreements and the printing of Chanuka gelt that was Charles Schulz’s most impressive legacy covers that.  (Maybe an entertainment lawyer can tell me different.  Gordon Firemark, are you out there?) Read More…

Best of 2005: Have a Coke and a Trial

Originally posted on July 15, 2005.

Coca-Cola Classic

India doesn’t have a First Amendment, as such, but from what I read its free speech protections are similar to those in the West.  So the use of threatening a trademark suit to chill criticism should distress everyone who’s not a complete Coke head.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

Not that such threats don’t always work; they frequently do. But we shouldn’t like it or “tolerate” it.

Coca-Cola: Please limit your trademark litigation threats to the Real Thing. And save your chilling effects for the soda pop!

Bad for branding, worse for trade secrets

Pesticides in soft drinks, that is. Or even allegations of them. Boing Boing reports that a court in India has ordered Pepsi and Coke to cough up their respective formulas.

UPDATE:  It’s not easy to tell, but I think this means they got out of it.

Best of 2012: The way of all flash

First posted March 27, 2012.

So, what happens when a trademark registration lapses?  The post at the link, by Corsearch, is, yeah, kind of an advertisement for Corsearch.  But it features a great video that vividly demonstrates what happened to the erstwhile Pepsi trademark, CHOICE OF A NEW GENERATION, which, they explain, “was picked up by another company, Better Oats, which is owned by MOM Brands (formerly Malt-O-Meal),” the latter of which is now using the slogan used by Pepsi from 1984 -1991.

It’s an adorable video — at least, if you like balding, saftig, middle-aged guys in their pajamas. And who doesn’t?!

I suppose the question being raised is, do we think Pepsi regrets its choice about the trademark of a previous generation of marketers?  Does this silly, albeit engaging, commercial for  Better Oats reflect in any way backwards on Pepsi?

It’s an interesting query, because the rich are different from you and me.  Almost all trademark registrations that are abandoned are, well, abandoned trademarks — forgotten and un-mourned, as often as not along with the product or service with which they were originally associated.  But Pepsi, of course, is still Pepsi; more significantly, in some ways just about every media campaign Pepsi has ever run is probably still alive in some way, too.

Baby Boomers and others raised on mass media never let go of the trivia, TV images and radio spots burned deep into our neural pathways as formerly young people.  That’s especially true of the hammer-marketing pounded into us by major brands such as Pepsi once they settle on a new slogan.  How many Americans between 35 and 50, asked to identify what exactly is “the choice of a new generation,” would not think of Pepsi?  Even if the answer were only 10-20%, why, that’s millions of fine high-fructose-corn-syrup-guzzling Americans right there!

Does Pepsi risk anything, brand-wise, by letting its tagline-made-trademark (hey, sometimes it really is one), in which it once invested bazillions of dollars, be associated with a silly midlife ode to breakfast cereal?   Huh?  Does it?  Does it?

Of course not, stupid.  Not at all.

Is this obvious?  Not to everyone:

One intellectual property attorney explains that Pepsi could attempt to hold onto the slogan by claiming “‘residual goodwill’… even though you are no longer using the mark, consumers [could] still associate that mark with the original user.”

Get real!  (Um, not the Real Thing real.  Just regular real.)  God help us if the Lanham Act really did protect “residual goodwill” — what possible rationale could there be for that?

Remember:  Pepsi did not let a trademark “lapse.”  It let a TRADEMARK REGISTRATION lapse.  If Pepsi were still using this trademark, it could enforce its rights in it by demonstrating that continued use, and get a new registration.  Pepsi is not using the mark.  There is, therefore, abandonment.  There is no “residual” goodwill where there is abandonment.  As I just wrote with respect to trade dress and private labels, “You can’t stitch together different packaging used at different times to create a ‘dynamic’ or pastiche trade dress protectible under the Lanham Act.”

Same with any trademark:  You’re using it or you aren’t.  Residue won’t do; you get the entirely satisfying reward of creating a moment in popular culture, or media, history, and no more.

The brand-rich are different from you and me, yes (ever hear of trademark dilution? Or, as Lara Pearson explains, the BLUE IVY trademark application?), but not that different; not yet.  Pepsi has moved on and, it’s okay to let go.  Thank you for doing so, Pepsi, and letting MOM Brands make this commercial, bringing new life (oops) to your old trademark for a new generation.  From now on, whenever I think of oatmeal, I’ll think of you, Pepsi.  In the nicest possible way!

Trademarks in the age of 140 characters or less

Or at least trademark logos.

Context:  If you’re over 50, you can probably remember when television commercials were mainly 60 seconds or 30 seconds.  There were exceptions.  But the premise was you were sitting there to watch a program.  That’s what you were doing.  Now for a commercial message, or “a word from our sponsors.”  The sponsors would try to get a message across to you in a minute or in half a minute.

Then we started getting distracted.  Blame culture; blame education; blame refined sugar.  Commercials–“spots”–became shorter.  By the time I was working my way through college selling radio airtime just about no one bought “sixties,” and what we pushed was frequency:  Lots of pings with a simple message.

If you think about it, that’s what a lot of so much of our advertising and other “branding” looks like these days.  Consider the Cole Haan subway campaign I wrote about earlier this year:  Even where an entire car of a subway train becomes the medium for the message, the message presented is still fractured — a million little memes of branding, so no matter which direction you’re wedged into looking at, or no matter how much stimulation and change you crave, you get fractionated mini-versions, or slices, of the overall branding message.  It’s a perfect approach for the Twitter era and, of course, particularly appreciated by ADD-addled bloggers such as LIKELIHOOD OF CONFUSION®.

In that light, consider this great post by Steve Baird (whose blogging distinguishes itself intellectually and creatively more with each passing year).  Excerpt:

[J]ust a month ago, Coca-Cola had obtained a federal trademark registration for a non-traditional trademark including the large stylized D as part of the design of a soft drink can:

After scanning recent trademark filings at the USPTO by Coca-Cola, it appears the beverage giant is working on building some non-traditional trademark protection around various partial but visible images of the Diet Coke soft drink can (depending on your physical perspective in relation to the can), and this one had a Notice of Allowance issue for it just two months ago:

This tactic reminds me of other brand owners who have made conscious use of brand renditions having portions of the brand name obscured, remember those long-gone Marlboro Man billboard ads?

Great point.  This assertion of rights in slices of brand images is intriguing, and is the province solely of the most powerful brands–of which, of course, we can always count on Coca-Cola to own many.  For the assertion of rights follows, or should follow, only to the extent that those rights track secondary meaning.  For many Coke angles, that works.

Part of the fun in thinking about this, from the Coke logo trademark point of view, is the geometry of it.  One of my first-ever trademark research assignments actually concerned the shape of a beverage bottle, research that–honest–eventually found its way into Nora Beverages, Inc. v. Perrier Group of Am., Inc., 269 F.3d 114 (2d Cir. 2001) (I worked for the firm that represented Perrier but moved on … as I used to do … well before it got to that point), so I appreciate how important the iconic “Coke bottle” shape is to Coca-Cola.  But what’s particularly interesting here is the play of the mark, as indicated on top first mark above, of the cylindrical container (what real people would call “a soda can”), as Steve points out.

This was obviously purposeful in the first instance:  the earlier registration (the second image above) is itself a snatch of a notional presentation of the Diet Coke logo all spread out, sort of like a Mercator Projection of a Coke can–notional because, of course, we never really see a Coke can that way.  Now we get a turn of a snatch and it all comes rushing right back to us — much like the experience we have, in fact, after drinking a whole can of Diet Coke.

This ability to drill down to a graphic identity is only for the very rich in brand equity, of course, and–unless spun out of control so that the variations, angles and turns induce vertigo — is a great way to mine that equity in all sorts of ways.

The mail must go you

Still and all, however, I do wonder what, exactly, the purpose is of securing a registration for something like this.  I will grant you the first one above, i.e., the one later in time; the mark does, after all, encompass an integrated form of trade dress for a Diet Coke can.  I suppose the value of the bottom mark is that this image can be, as I said above, used in all sorts of ways besides on Coke cans.  I keep thinking of how that second graphic looks like it wants to be a postage stamp, although, unlike some of us, Coca-Cola doesn’t need to roll its own.

And yet, as we see, it does nonetheless.  The great ones always do!  Superb post, as usual, from Duets Blog.

The way of all flash

So, what happens when a trademark registration lapses?  The post at the link, by Corsearch, is, yeah, kind of an advertisement for Corsearch.  But it features a great video that vividly demonstrates what happened to the erstwhile Pepsi trademark, CHOICE OF A NEW GENERATION, which, they explain, “was picked up by another company, Better Oats, which is owned by MOM Brands (formerly Malt-O-Meal),” the latter of which is now using the slogan used by Pepsi from 1984 -1991.

It’s an adorable video — at least, if you like balding, saftig, middle-aged guys in their pajamas. And who doesn’t?!

I suppose the question being raised is, do we think Pepsi regrets its choice about the trademark of a previous generation of marketers?  Does this silly, albeit engaging, commercial for  Better Oats reflect in any way backwards on Pepsi?

It’s an interesting query, because the rich are different from you and me.  Almost all trademark registrations that are abandoned are, well, abandoned trademarks — forgotten and un-mourned, as often as not along with the product or service with which they were originally associated.  But Pepsi, of course, is still Pepsi; more significantly, in some ways just about every media campaign Pepsi has ever run is probably still alive in some way, too.

Baby Boomers and others raised on mass media never let go of the trivia, TV images and radio spots burned deep into our neural pathways as formerly young people.  That’s especially true of the hammer-marketing pounded into us by major brands such as Pepsi once they settle on a new slogan.  How many Americans between 35 and 50, asked to identify what exactly is “the choice of a new generation,” would not think of Pepsi?  Even if the answer were only 10-20%, why, that’s millions of fine high-fructose-corn-syrup-guzzling Americans right there!

Does Pepsi risk anything, brand-wise, by letting its tagline-made-trademark (hey, sometimes it really is one), in which it once invested bazillions of dollars, be associated with a silly midlife ode to breakfast cereal?   Huh?  Does it?  Does it?

Of course not, stupid.  Not at all.

Is this obvious?  Not to everyone:

One intellectual property attorney explains that Pepsi could attempt to hold onto the slogan by claiming “‘residual goodwill’… even though you are no longer using the mark, consumers [could] still associate that mark with the original user.”

Get real!  (Um, not the Real Thing real.  Just regular real.)  God help us if the Lanham Act really did protect “residual goodwill” — what possible rationale could there be for that?

Remember:  Pepsi did not let a trademark “lapse.”  It let a TRADEMARK REGISTRATION lapse.  If Pepsi were still using this trademark, it could enforce its rights in it by demonstrating that continued use, and get a new registration.  Pepsi is not using the mark.  There is, therefore, abandonment.  There is no “residual” goodwill where there is abandonment.  As I just wrote with respect to trade dress and private labels, “You can’t stitch together different packaging used at different times to create a ‘dynamic’ or pastiche trade dress protectible under the Lanham Act.”

Same with any trademark:  You’re using it or you aren’t.  Residue won’t do; you get the entirely satisfying reward of creating a moment in popular culture, or media, history, and no more.

The brand-rich are different from you and me, yes (ever hear of trademark dilution? Or, as Lara Pearson explains, the BLUE IVY trademark application?), but not that different; not yet.  Pepsi has moved on and, it’s okay to let go.  Thank you for doing so, Pepsi, and letting MOM Brands make this commercial, bringing new life (oops) to your old trademark for a new generation.  From now on, whenever I think of oatmeal, I’ll think of you, Pepsi.  In the nicest possible way!