“[I]t will be worth watching to see whether the [TTAB] finds that ‘ZERO’ primarily means Coke or just a soft drink having ‘no calories, you know, a drink about nothing . . . .’”
Turns out, in May 2016, Coke obtained a favorable decision from the TTAB, ruling that ZERO is not generic for a soft drink category, instead it is descriptive and Coke has secondary meaning in it.
Then, two months ago, the CAFC decided — on appeal — that the TTAB got it wrong, ruling it:
“[F]ailed to consider whether consumers would consider the term ZERO to be generic for a subcategory of the claimed genus of beverages – i.e., the subcategory of the claimed beverages encompassing the specialty beverage categories of drinks with few or no calories or few or no carbohydrates.”
We’re now back to the question we asked in 2014: “[I]s ZERO like LIGHT for beer, STONE OVEN for pizza — basically denoting the name of a product category instead of a source identifier?”
As to the next steps, the CAFC sent the case back to the TTAB, instructing it to “examine whether the term ZERO, when appended to a beverage mark, refers to a key aspect of the genus.”
TM types, is Professor McCarthy right that the CAFC ruling makes it too easy to find genericness?
I’m left wondering, given the floodgates that have opened up to other beverage brands also using ZERO as a generic category term for “no calories” or “no sugar” — is fighting for ZERO worth it?
Will Coke continue to fight for ZERO as a trademark? Or, should it make better soda instead?