Josh Brooks of reports, here, that Coca-Cola has succeeded before the Paris Court of Appeal in banning the production and sale of Yoplait’s Dizzy brand “milk-based fizzy drink.” Coca-Cola’s winning Blak bottle is shown below side-by-side with the losing Yoplait Dizzy bottle:

Coca-Cola vs Yoplait: French court ruling

It appears from the news report that the French success was based purely on the distinctive shape of Coca-Cola’s Blak bottle. Putting the bottle shapes aside, if one were considering the non-shape visual aspects of trade dress, one might be tempted to call the Coca-Cola Blak beverage, night, and the Yoplait Dizzy beverage, day, since that is about how much they otherwise share in common.

It will be interesting to see how this ruling impacts (if at all) Yoplait’s apparent intention to launch its Dizzy beverage in the U.S. marketplace. Yoplait’s word mark application for Dizzy was just issued a Notice of Allowance by the U.S. Trademark Office last month, so unless Yoplait requests an extension of time to submit evidence of use in the U.S., we might see the U.S. version of the Dizzy product by November 2009, if not sooner. Interestingly, Yoplait abandoned a bottle shape trademark application a couple of years ago, here, having a virtually identical identification of goods, and it was initially refused registration on functionality and non-distinctiveness grounds, but not on confusing similarity to Coca-Cola’s distinctive bottle shape trademark.

Hat tip to JoAnn Hines, The Packaging Diva, on the Josh Brooks article.

By the way, DuetsBlog readers should check out, a new and interesting site launched by JoAnn, “Where Packages Are Judged By the People Who Buy Them” and a slate of Guest Authors with various backgrounds and experience, including yours truly.

  • Good post! I’m so glad you are sharing your expertise on Personally I don’t see how the two are similar other than a resemblance in shape.

  • The Europeans take a very literal view on such matters, which is why you can’t call any sparkling wine “champagne” unless it comes from the region of Champagne in France. The best you can do is “methode Champagnoise” if my French doesn’t fail me. I’m kind of surprised that Coke even bothered, since isn’t Blak more a curiosity than a real product at this point?

  • John Nutting

    re the Yoplait versus the Coca-Cola aluminium bottle issue it’s worth noting that:
    1. the image of the two bottles commonly used is of a glass C-C Blak bottle and the Yoplait aluminium bottle.
    2. The aluminium bottles used by Coca-Cola Blak and other products come from the same manufacturer as for the Yoplait Dizzy bottles. Only difference is the positioning of the ‘waist’ which is higher on the Yoplait version. Unless Coke has been very specific about this they don’t really have a case.
    3. Coca-Cola test marketed a carbonated milk drink called Vio in aluminium bottles in New York just days after the Paris appeal ruling. Any connection?