Yesterday the U.S. Trademark Trial and Appeal Board (“TTAB”) dismissed oppositions to 17 trademark applications filed by The Coca Cola Company for registration of word marks containing the term “ZERO” for use on “beverages, namely soft drinks; syrups and concentrates for the making of the same.” Companhia de Bebidas das Américas v. The Coca Cola Company, Opposition Nos. 91178952, etc. (TTAB May 2, 2012). The full word marks included COCA-COLA ZERO, COKE ZERO, SPRITE ZERO, etc. The opposing party, a Brazilian company called Companhia de Bebidas das Américas, contended that the term ZERO “is merely descriptive and that the evidence of acquired distinctiveness is insufficient to permit registration.”
In its non-precedential opinion, the TTAB reviewed evidence of the fact that many soft drink manufacturers use terms such as “zero-calorie,” “zero-carb,” and “zero-sugar” to refer to their products. Although such evidence “demonstrates that ZERO is treated as merely descriptive when used in connection with the nutritional facts or the names of ingredients of a variety of beverages including soft drinks,” the court observed that “some of the evidence of record is more ambiguous.” Citing examples of the use of ZERO in registered word marks for beverages other than soft drinks, the court found that “while ZERO may describe the particular amount of an ingredient or the nutritional content, by itself, ZERO only describes a general absence of some ingredient normally present.” On the basis of this evidence, the TTAB concluded the term “is not so highly descriptive as to identify a product category.”
The TTAB determined that Coca-Cola had presented sufficient evidence of acquired distinctiveness of its use of ZERO in the subject marks. In addition to the fact that Coca-Cola had used the term continuously for eight years in connection with sales of soft drinks, it had experienced sales of its ZERO products exceeding one billion dollars in a two-year period. In addition, by early 2007, Coca-Cola had spent more than $150 million in advertising and promotion of the ZERO product line. The TTAB also considered probative evidence of wide discussion of Coca-Cola’s ZERO products in popular media, as well as advertising samples in which Coca-Cola featured in the same image specimens of COKE ZERO, VAULT ZERO, SPRITE ZERO, FANTA ZERO, and PIBB ZERO. The TTAB “agree[d] with [Coca-Cola] that such advertisements attempt to convey to the consumer that ZERO as used on the goods is intended to serve in a ‘trademark sense as part of the product brand name,’ and not merely as conveying nutritional information.” Finally, the TTAB reviewed consumer surveys submitted by the parties. The TTAB discounted the opposer’s survey, finding that it was “more a survey of meaning than source identification.” The Coca-Cola survey, on the other hand, was more directly on point. It “found that 61% of respondents ‘perceive’ that ZERO was associated with only one company as opposed to 6% for the term DIET.” The totality of the evidence led the TTAB to conclude that Coca-Cola’s use of the term ZERO to refer to its soft drink products was “substantially exclusive,” and that Coca-Cola was entitled to have its marks registered on the US Patent and Trademark Office’s Principal Register.