The rivalry between Coca Cola and Pepsico is no secret but it seems to have entered a new phase as the battleground shifts from Sugarland Texas to Australia in the latest instalment of the bottle trademark wars.
It all started a few months ago in Sugarland, Texas, when the Sugarland based TCCC division sued Pepsico for knocking off their iconic distinctly shaped oversized green bottle caps and carafe shaped bottles of Coke’s Simply Family’s popular juices.
Coca-Cola discovered Pepsico juices dressed in look-a-like Simply Familys oversized green enclosures, contained in imitation Simply Family bottles. Coke moved for an urgent injunction to prevent irreparable harm to stop the continuing juice trademark dilution. The sugarland battle over the oversized green cap and carafe-style bottles is still being waged.
The juice bottle and cap war waged by Pepsico against Coca-Cola may not have been be just an isolated campaign to destroy the identity and happiness of Coke’s popular happy Tropicana Simply Family juices in light of Coca-Cola’s claims that on the 4th of May a knock off of their contour shaped glass bottle was spotted in a 7-Eleven store in Elizabeth Street Melbourne, Australia.
Coca-Cola Company says Pepsi has been flogging its carbonated beverages in imitation Coke contour bottles for at least five months and seeks an injunction demanding Pepsi immediately hand over all Coca-Cola inspired glass bottles so that Coca-Cola can destroy them.
The distinctive shape and silhouette has been used by Coke since 1916 in the US and since at least 1938 in Australia. Coca-Cola has aggressively protected it’s contour bottle and perceive the recent Japanese IP High Court decision recognising the contour bottle as a trade mark as having increased it’s value. The contour battle is considered the most valuable commercial configuration in the world.
In an oversimplification of Pepsico’s likely response, the ‘number 2 brand’ would probably argue that a Pepsi labelled bottle wouldn’t be likely to be mistaken by consumers for a Coke bottle, particularly given the fact that Pepsi has labels and other distinguishing features that any discerning consumer in the market for a Cola would recognise.
Coke says only it has an exclusive monopoly over the right to use a silhouette shaped bottle where the waist is slimmer in the middle and Pepsi is appropriating it’s exclusive right to make bottles with the same contour.
Coca Colas largest shareholder Warren Buffet recently reminisced about how he started out as a six year old drinking the ‘number 2 brand’ pepsi, describing these moments as “the most joyful periods of his life“. He describes how at eight years of age he started to knuckle down and save his nickels and dimes, upon realising he was too poor to drink Coca-Cola.
In the United States the Coca-Cola contour bottle was one of the first 3D trademarks to be granted a trademark by the UPSTO.
Coca-Cola successfuly applied to the Office for Harmonisation in the Internal Market (OHIM) to register three variations of their 3D bottle shapes as community trade marks in 2006.
The scope of Coca-Cola’s monopoly in it’s contour glass bottle will be tested in the Federal Court of Australia in Coca-Cola’s battle with Pepsico and Schweppes. The case will raise some interesting precedents on 3D trademarks such as Chocolaterie Guylian N.V. v Registrar of Trade Marks  FCA 891; Guylian v Registrar of Trade Marks Koninklijke Philips Electronics NV v Remington Products Pty Ltd  FCA 816 and Coca-Cola Co V All-Fect Distriubutors  FCA 1721l