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Coca-Cola loses

May 2019. Drinks giant Coca-Cola has suffered a painful defeat in its bid to stop the EU registration of a beer can marketed by brewer Tes Cerveza. According to a European Trademark Office EUIPO decision published on 3 April, the can’s design doesn’t infringe Coca-Cola’s trademark rights.

Left: the registered trademark

Three trademark registrations

Coca-Cola’s opposition was based on its registrations to three trademarks: the world-famous Coca-Cola logo, a line drawing of the iconic Cola can and a Coca-Cola light can in the distinctive red and white colours.

The three registered trademarks on which Coca-Cola based its opposition

EUIPO however dismissed Coca-Cola’s claims fairly swiftly. Although it owned one of the world’s biggest trademarks, with wide protection extending well beyond the soft drinks segment, Coca-Cola’s rights hadn’t been infringed by Tes Cerveza, EUIPO concluded.

No similarity

EUIPO simply decided the two trademarks weren’t alike. The font used by Coca-Cola was elegant and smooth, it said, whereas the one used by Tes was more angular, with some thorn-like particles protruding from the main lines. As regards the capital letter C (which of course is a partial copy of Coca-Cola’s), EUIPO said that while both had a ‘tail’ that swept under the word, they were otherwise very different: Coca-Cola’s was shorter with a downward curve.

No similarity

Disappointing

We think it’s disappointing that EUIPO wasn’t prepared to offer more protection to the world’s best-known trademark. While there’s clearly no risk of Coca-Cola being confused with Tes, it isn’t necessary to demonstrate this given that the former trademark is a famous mark. Consumers making a link between it and a rival trademark one can be enough to warrant an infringement. The same applies even if the product isn’t a soft drink (in this case a beer). We certainly feel that Tes Cerveza is trying to piggy-back on the global reputation of the Coca-Cola logo.

Would Coca-Cola have had a stronger case if it had registered the C as a separate trademark?

Registration of the C as a separate trademark?

Could Coca-Cola have protected itself better? Maybe. Since the C with a sweeping tail is a highly distinctive element of the logo, it might have been an idea to register it separately as a trademark in its own right. Putting aside queries about use, doing so would probably have helped in this instance. Yet how far should a company have to go in registering different elements of its trademark? Coca-Cola’s bound to appeal.

Bas Kist