Tuesday, 28 September 2010

The Coca-Cola Company sues to protect bottle shape in US

I’m not passing comment here on what The Coca-Cola Company is doing with its trade marks: I don’t know enough about this story, and it’s many years since I bought orange juice in a US grocery store. In fact, I might never have done so at all. But I think there are lessons in this story about the company’s spat with Aldi over a bottle shape.
The bottles look pretty mundane to me (and I recall in the Round Imports v PML Redfearn Ltd [1999] CIPA 725 design right case yonks ago that the judge (Rattee J) thought that differences a bottle designer might consider significant could well be lost on inexpert consumers – in other words, bottle designs have an inherent tendency to look pretty similar), but The Coca-Cola Company has been selling juice in bottles of this shape for some nine years. That might be long enough to create a reputation in the shape, I suppose, if the shape is ever going to get to the stage of having a reputation. Certainly this is what The Coca-Cola Company claims is what has happened: it claims its rights in the trade dress of the product have been infringed. That’s essentially a trade mark point, but there is a design patent point too – the bottle shape is protected by several of these volatile rights. Volatile, because like a UK or Community registered design, design patents are readily granted, and frequently invalidated. Round Imports, though of absolutely no significance in a case in the US, is concerned with the limitations of design protection for mundane designs.
Aldi is selling a similar drink in a bottle which is very similar – perhaps, in Round Imports terms, identical. Maybe The Coca-Cola Company is right to claim it is damaged by this, although I’d have thought the consumer would pay attention to a lot more elements of the get-up than the bottle shape alone (indeed, might ignore the bottle shape and look at the name and other indicia). Be that as it may, and (as I said) not wishing to comment on the particular case (which also involves design patent claims), there are plenty of other cases around like this where businesses have tried to “leverage” their trade mark rights and create out of them a true monopoly. And if trade mark and design owners are able to do this, to my mind it’s a good indication that the system is broken.

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