Atlanta, Georgia—It was May last year when I had the chance to visit the Coca Cola museum in Atlanta while attending the International Trademark Association (INTA) conference.
Coincidentally, the first glass of Coca-Cola was served on May 8, 1886 at Jacobs’ Pharmacy in Atlanta for five cents a glass as a soda fountain drink, marking its official beginning.
A pharmacist, Dr. John Pemberton, developed the syrup for Coca-Cola in 1886 with the intention to medically replace morphine and as a “cure all” elixir, specifically targeting impotence, dyspepsia, neurasthenia, headaches, and to help those who were struggling with an addiction to morphine. Coca-Cola has transformed over the years from a health stimulant to a refreshing beverage.
Coca-Cola’s trademark was constructed by Mr. Pemberton’s bookkeeper, Frank Robinson.
The syrup’s formula consisted of coca leaf extract and caffeine from the kola nut. Mr. Robinson thought that by having two Cs in the name it would enhance the advertising.
Kola became Cola, and the brand name Coca Cola was born.
On January 31, 1893, the first scripted “Coca-Cola” logo was registered as trademark with the US Patent Office using Mr. Robinson’s own penmanship, flowing in Spencerian script lettering with fanciful curls of the “Cs.”
While the logo has morphed into various iterations since 1893, it still remains similar to the original trademark.
Trademarks perform four functions: (1) they identify one’s products and distinguish them from those of others; (2) they indicate that products bearing that trademark come from a specific source; (3) they signify that products bearing that trademark have the same quality level; and (4) they make a major contribution to the advertising and selling of these products.
Coca-Cola’s contour (also called hobbleskirt) bottle is one of the most recognizable packaging designs in the world. It was patented in 1915 by the Root Glass Company in Terre Haute, Indiana. Its distinctive curves and fluted shape were specifically created to set Coca-Cola apart from “copycat” brands and makes it sturdier and easier to grip.
The Cola wars are the long-time rivalry between soft drink producers Coca-Cola Company and Pepsi-Cola Company, who have engaged in mutually-targeted marketing campaigns for the direct competition between each company’s product lines, especially their flagship colas, Coca-Cola and Pepsi.
In 1898 in New Bern, North Carolina, Caleb Bradham renamed his “Brad’s Drink” to “Pepsi-Cola,” and founded the PepsiCo. in 1902.
The cola wars extend to the legal front.
Hoarding a competitor’s bottles does not constitute unfair competition as defined by the Intellectual Property Code ( IP Code), the Supreme Court ruled in the 2008 case of Coca-Cola Bottlers, Phils., Inc. v. Gomez (GR 154491, November 14, 2008).
The Supreme Court upheld the decision of the Naga City Regional Trial Court declaring void a search warrant used in seizing 2,500 Coca-Cola Litro (1.5 and 2 litre bottles) and 3,000 eight- and 12-ounce empty Coke bottles from Pepsi’s Naga manufacturing facility.
The warrant was issued based on Pepsi’s alleged violation of Section 168.3 (Unfair Competition) of the IP Code, which Coca Cola argued may include “other acts contrary to good faith of a nature calculated to discredit the goods, business or services of another.”
Coca-Cola said the hoarding of its empty bottles had been characterized by bad faith, adding that its bottling operations in Naga had been affected. The empty bottles are collected so that they can be withdrawn from circulation and thus impede the circulation of its bottled products.
The Supreme Court ruled in the negative as it stressed that “hoarding” does not relate to any patent, trademark, trade name or service mark that Pepsi invaded, intruded into or used without proper authority from the Coca-Cola.
It noted that Pepsi is not alleged (a) to be fraudulently “passing off” their products or services as those of Coca Cola and (b) to be undertaking any representation or misrepresentation that would confuse or tend to confuse the goods of the Coca Cola with those of Pepsi, or vice versa.
What in fact Coca Cola alleges is an act foreign to the IP Code, to the concepts it embodies and to the acts it regulates; as alleged, hoarding inflicts unfairness by seeking to limit the opposition’s sales by depriving it of the bottles it can use for these sales.
The SC held that RA 623 should have been the law used, specifically under Sections 1 and 2, which state that “it is unlawful for any person to fill, destroy, or use beverage bottles or other similar containers that are stamped or marked with a registered mark, for any other purpose than that registered by the manufacturer, bottler, or seller.”
Atty. Dennis R. Gorecho is a Junior Partner of the Sapalo Velez Bundang Bulilan Law Offices. For comments, e-mail info@sapalovelez.com, or call 0908-8665786.
