Royal Crown Co., Inc.. v. The Coca-Cola Co., No. 16-2375 (Fed. Cir. 2018)Annotate this Case
Royal Crown (RC) and The Coca-Cola Company (TCCC) compete in the beverage market. Both companies and others distribute beverages that use ZERO as an element of their marks. When RC sought trademark protection for DIET RITE PURE ZERO and PURE ZERO, it disclaimed the term ZERO apart from the marks as a whole. TCCC has used ZERO as an element in its marks for at least 12 different beverage products sold in the U.S. The Patent and Trademark Office requested that TCCC disclaim the term “zero” because the term merely “describes a feature of the applicant’s goods, namely, calorie or carbohydrate content of the goods.” TCCC responded that the term had acquired distinctiveness under the Lanham Act, 15 U.S.C. 1052(f). The PTO accepted TCCC’s Section 2(f) submissions and approved the marks for publication without requiring disclaimers. The Board concluded that RC failed to demonstrate that ZERO is generic for the genus of goods identified in TCC's applications; that survey evidence indicated that TCCC’s ZERO marks had acquired distinctiveness; and that TCCC’s use of ZERO in connection with soft drinks was substantially exclusive, given the “magnitude of TCCC’s use.” The Board dismissed RC’s oppositions. The Federal Circuit vacated. The Board erred in its legal framing of the question of the claimed genericness of TCCC’s marks, and failed to determine whether, if not generic, the marks were at least highly descriptive.