PepsiCo recently made waves with its purchase of SodaStream, but the company is now making news in the food business. This time the news is all about Pepsi’s Frito-Lay division, and its mischief making Chester Cheetah and his crunchy, cheesy, Cheetos brand. Pepsi recently sent a cease and desist letter to World Peas, a manufacturer of healthy-ish snack foods and its recent marketing of Peatos brand snacks.

 

What are Peatos exactly? They’re a crunchy snack food made primarily from peas and lentils, but, Peatos are not intended to be a “health food.” The company describes its mission as making “90% of people eat 10% better, not 10% of people eat 90% better.” The goal appears to be: make a snack that is a little bit better for you without sacrificing flavor. Product quality aside though, is Pepsi correct that the PEATOS mark is confusingly similar to the CHEETOS mark?

Courts consider a variety of factors in evaluating whether someone is infringing another’s trademark: do the marks create similar commercial impressions; are the products at issue competitive, similar, or related; how strong are the marks in terms of meaning and commercial strength; are the goods sold through similar channels of trade (i.e., through the same types of stores); and others. The two factors that tend to play the most prominent role are the similarity of the commercial impressions of the marks and the similarity of the goods.

In the Peatos versus Cheetos dispute, many of the factors would favor Pepsi. The goods are competitive (even if one is a bit healthier), both are sold in the grocery stores, and the CHEETOS mark is an arguably famous and strong mark. But even if every single factor but one were to favor Pepsi’s claim of infringement, it would not be enough if the marks are so dissimilar that no confusion is likely. So what do you think, how similar to Cheetos is Peatos?

The only difference in sound is the initial letter P versus the CH sound. Visually, the marks have a few more differences in letters. As far as I’m aware, neither mark has a defined meaning. The PEATO mark has additional meaning of one its ingredients (Pea).

But what about the overall commercial impression of the marks? What is the impression that Peatos will make in the mind of a consumer? For me, the immediate impression is that the product is a Cheeto made from peas. In fact, I can’t imagine that World Peas came up with the name in any other way other than “What should we call a Cheeto made from peas? Oh! Peatos would be a good pun!”

A likelihood of consumer confusion does not require actual consumer confusion. It also does not require that consumers confuse the products themselves, or that a consumer incorrectly think that Pepsi makes Peatos. A likelihood of confusion exists whenever a consumer might mistakenly believe that there is some type of endorsement, connection, or affiliation between the two parties. Given Pepsi’s recent purchase of SodaStream and the general trend toward healthier consumer choices, is it really that much of a leap to imagine a famous brand of snacks extending into a pea-based version of itself?

Setting aside the similarity in the marks, World Peas is actively drawing a connection between Cheetos and Peatos through use of a tiger and a similar color scheme for its bag and logo. The fact that the actual Peatos products look like Cheetos isn’t likely an issue, but it doesn’t help, especially if Pepsi argues a claim of post-sale confusion.

In addition to all this, World Peas makes explicit Cheetos comparisons on its website. Granted, these comparisons likely qualify for a fair use (although the use of the Cheetos logo may be more than necessary). However, when you know you’ll be poking the tiger, do you really need to pull its tail and poke it in the eye too? If the company truly plans on sticking with the Peatos name, it may have been best to not exacerbate Pepsi’s concerns and use a different colored logo, avoid the tiger on the packaging, and maybe not so aggressively market yourself as a healthier version of Cheetos. While Pepsi may have still come knocking, Pepsi would at least have less ammunition for its claims.

I wouldn’t say this a clear cut case of infringement, but given all these facts, there is at least a colorable claim of infringement . The company must have known it would receive a demand letter regarding the name. Perhaps the plan was to enjoy the free press for its new product and then switch the name, knowing the name change would also be heavily publicized?

Apart of from the potential legal liability, it isn’t a terrible plan, and I’m certainly interested in trying a bag of Peatos. Once I find a bag, I’ll be sure to let you know whether they’re g-r-r-r-r-r-r-r-eat!

For a few months now, the Minneapolis skyway system has been flooded with a variety of fresh, creative, eye-popping advertising to promote Pepsi’s new bubly sparkling water collection:

Although not a lie (the bottles I’ve seen clearly reference Pepsi), you’d never know from this ad or the trademark registration that Pepsi is behind bubly, since an Irish entity located in Bermuda owns the mark.

Thoughts about Pepsi’s line of reasoning for having ownership rest with an Irish entity located in Bermuda? Taxes maybe?

Yet, it is clear the market knows this is a Pepsi launch, wonder what Coke, owner of Tab, thinks?

Sipping a bubbly drink, like sparkling water, necessarily has bubbles, explaining why the USPTO required a disclaimer of the word “bubbly,” even though the mark includes bubly, not bubbly.

Although it might be nice to own a standard character registration for the misspelled and un-disclaimed wording bubly, that hasn’t been attempted, as the misspelling is likely not distinctive.

Holding a word only registration for bubly doesn’t appear possible any time soon, since the double entendre is only apparent from the stylized bubly sparkling water mark, not bubly standing alone.

Double entendre? Yes, the description of the stylized mark notes the “u” in “bubly” is “depicted as a smile,” which ties into the additional meaning of “bubbly” — lively, cheerful and talks a lot.

If the words “bubbly” and “bubly” can’t be owned here, may that inspire a truncation to bub, especially given this pending intent-to-use trademark applications for bub and Bub Sparkling Water?

We’ve been spilling a lot of digital ink lately on the topic of non-traditional trademark protection and how the functionality doctrine serves as an absolute bar for such protection.

As you know, for some time, we’ve been stressing the importance of close collaboration between trademark and marketing types when it comes to forming public communications about unique product design features, if there is to be any hope of owning those features as trademarks.

Let’s not forget the potential functionality “ticking time bombs” in public communications about Pepsi’s “grip-able” portion of its bottle design, or Lexus’ “spindle” front grille: “Its trapezoid-like shape assists the flow of air into the engine room.”

One of the important takeaways from our recent webinar entitled “Strategies for Owning Product Designs,” was spoken by legendary product design guru Bob Worrell of Worrell Design: “There is another adage in the design world. Advertising is the very expensive penalty you pay for poor design. I think if we listen to that adage, we’d talk less and let the product do its thing.” (quote at 1:22:31)

Bob further explained one of the Bauhaus principles of design, namely, “form follows function”. Obviously this is a dangerous principle when it comes to non-traditional trademark protection. Clearly, Hartmut Esslinger’s mindset of “form follows emotion” is a safer one to have in mind when one is selling or communicating about product design and product design features.

This topic isn’t going away any time soon, at the end of last year, we highlighted a number of product configuration trademark filings, and in early January of this year, we asked whether 2015 will be the year of functionality refusals at the USPTO for product configuration trademark applications. It appears, we may be off to a good (actually bad) start.

Just today, John Welch over at the TTABlog recommended some important reading on the subject of trademark functionality, and as you will recall, John shared some valuable insights on functionality last month.

So, I’ll ask the question a little differently today, will 2015 be the year of functionality refusals, or will it be the year we closely collaborate to bring down the Bauhaus when communicating about product design features?

-Wes Anderson, Attorney

Famous brand owners, take note: a Turkish artist and designer named Mehmet Gozetlik recently released “Chinatown,” a mesmerizing series of photographs in which neon lights depict famous design marks, with the word mark replaced by its generic wording in Chinese.  Is your brand one of them?

The Pepsi logo, for example, has been recreated in a meticulously crafted neon light, with the Chinese characters for “diet cola” appearing in the spot reserved for “PEPSI.”  See for yourself in the video below:

Chinatown / The Chinese translation of the trademarks from Mehmet Gözetlik on Vimeo.

According to the artist:

‘Chinatown’ pushes viewers to ask themselves what it means to see, hear, and become fully aware. ‘Chinatown’ also demonstrates our strangeness to 1.35 billion people in the world, when you can’t read Chinese.

In other prints, “Car” replaces “FORD,” and (my favorite) “Caramel Macchiato” replaces “STARBUCKS.”

You can see the full gallery of photographs on Gozetlik’s website. In all, 20 famous design marks are featured, each with generic Chinese lettering.  Twelve of the prints are currently for sale at “Eyestorm,” a gallery with locations in London and New York.1

If you’re considering parting with $740 for a print, I suggest getting an order in now — if the brand owners fortunate enough to be featured take action, this could be a limited time offer.

Things get dicey where artistic works use trademarks, and the Lanham Act intersects with the First Amendment. The Lanham Act prohibits the use of a word, term, name, or symbol that “is likely to cause confusion, or to cause mistake, or to deceive as to the . . . origin, sponsorship, or approval of his or her goods, services, or commercial activities.” 15 U.S.C. § 1125(a)(1)(A). In other words, the central question is whether consumers would be confused as to whether Pepsi et al. sponsor or approve of Gozetlik’s artwork.

On the other hand, courts have found that the public interest in free expression can trump consumer confusion. The University of Alabama learned this three years ago, when it sued an artist who painted and sold images of Alabama Crimson Tide football games. These images, which sought fidelity to real-life events, contained the Tide’s iconic uniforms and designs. The Eleventh Circuit found in favor of the artist, and held that courts “should construe the Lanham Act narrowly when deciding whether an artistically expressive work infringes a trademark.” These so-called “artistically expressive” works do not violate the Lanham Act “unless the use of the mark has no artistic relevance to the underlying work whatsoever.”

Other brand owners choose to embrace artistic use of their marks. In response to Andy Warhol’s iconic Campbell’s Soup Cans painting, the Campbell Soup Company wrote Warhol a glowing letter in 1964 wishing him “continued success and good fortune” — and sent him some tomato soup to boot!

This presents brand owners with an interesting choice to make: pursue, or praise? No doubt, the photographs (and accompanying video, which earned a Vimeo “Staff Pick”) are gorgeous, and present a provocative message on globalization and language.  The rave reviews from other corners of the Internet suggests that we trademark lawyers are just wet blankets.

But no one can deny that the photos’ recognizability — and indeed, their entire premise — starts with appropriating famous design marks. Nowhere on Gozetlik’s website (or Eyestorm’s) is there any mention of a license to use these marks.2 The commercial nature of Gozetlik’s work is clear — and by selling to U.S. consumers through a gallery with a U.S. location, the Lanham Act directly applies.

Gozetlik’s replacement of the respective word marks with generic wording is another troubling issue: aside from the general aversion to generic wording, would English-speaking viewers believe they were looking at the Chinese transliteration for “PEPSI,” rather than the accepted translation for “diet cola”?  I must admit that, at first glance, I assumed the former.

So, what do you think? Should the brand owners featured in the collection take down “Chinatown”? Or should they back off entirely?

Perhaps most importantly, should Starbucks “pull a Campbell’s” and send some Caramel Macchiatos to the artist?

 


  1. The remaining eight prints — featuring logos for 7-ELEVEN, Lufthansa, and Chiquita — are not listed for sale, but it’s unclear whether any of these companies have taken any action.
  2. I’d be very impressed indeed if Mr. Gozetlik had actually obtained all 20 licenses!

Continuing our discussion — from yesterday and the day before — about the description of a mark provided to the USPTO during the registration process, the below images from two unrelated federally-registered, non-verbal logos for banking services, help tell another related story:

 

 

 

 

 

 

 

 

 

 

 

As the links on the USPTO images reveal, the one on the left is associated with Lloyds Bank, based in London, and the one on the right is associated with First Security Bank of Missoula, based in Missoula, Montana.

Despite the fact that both horse images show raised front legs and a head turned backward (and even putting color aside), the commercial impressions of these two non-verbal logos appear to me to be quite different. So, let’s compare the descriptions of each mark approved by the USPTO, but first let’s refresh our understanding of what the USPTO requires for descriptions of marks.

The USPTO generally requires that the description of the mark be clear, accurate, and concise. It also provides through TMEP 808.02 that the “description should describe all significant aspects of the mark” and “[i]nsignificant features need not be included in a description.” In addition, “[w]hen a mark includes a large number of elements, they are not all necessarily significant.  For example, background design elements can sometimes be considered insignificant if they do not change the overall commercial impression of the mark.”

But, “because of the requirement to describe where colors appear in the mark, marks that include color will generally have a more detailed description.”

With that background in mind, perhaps it is not surprising that the word count for Lloyds Bank’s horse logo is only eight words (“the mark consists of image of a horse”) while the First Security Bank of Missoula’s colored horse logo includes a whopping 136 words:

“The mark consists of a trotting horse depicted in bold brush strokes with the horse’s head turned to the viewer’s left. The horse’s head appears to be painted in blue with yellow, orange, and red highlights. The horse’s neck and front appears to be painted in blue with pink, purple, and yellow highlights. The horse’s front two legs appear to be painted in yellow, blue, pink, purple, orange, and red. The back of the horse, including the tail and the two hind legs, appears to be painted in yellow with orange and red highlights. Grass appears below the horse, which appears to be painted in green and blue. The horse is not painted in completely, and there are areas in the horse that are transparent where the background appears. The background of the mark is transparent.”

Here is where it might be beneficial to obtain not only a registration that claims color, but one that is not limited by color too, as the word count drops, and the scope of rights likely increases. I’m thinking it would have been possible to obtain the following description, keeping the USPTO’s guidance of the description being clear, accurate and concise (in an application not claiming color as part of the mark): “The mark consists of a horse depicted in bold brush strokes.”

Given the inherent subjectivity in application of these principles, how broad or narrow a description that the brand owner is able to obtain from the USPTO may depend on the assigned Examining Attorney, but counsel should keep in mind the “description of the mark” section of an application as an important element of the brand owner’s overall trademark portfolio strategy.

Short and sweet descriptions should support broader rights, but more detailed descriptions might be beneficial or even necessary to avoid getting hung up on broader prior registrations.

With that in mind, any trademark types out there ever file a petition for partial cancellation to narrow an overbroad description of the mark to make room for a newcomer’s application?

In particular, I’m left wondering, might it be possible to compel a narrower Lloyds Bank mark description, perhaps requiring more description about the position, pose, and activity of the horse?

As you may recall, we’ve written before about rearing and prancing horse non-verbal logos (recall this gem: Striking The Pose of Differentiation? from the deep, dark archives?), so I’m left assuming, given an appropriate set of facts, it could be a viable option in overcoming a likelihood of confusion refusal, any thoughts or insights to share?

Finally, let’s not forget the USPTO’s further instruction that “the description should state clearly and accurately what the mark comprises, and should not create a misleading impression by either positive statement or omission.”

Going back to my related post from yesterday, was Pepsi’s description misleading?

How cool is it to have the MLB All-Star Game and related events, right here in Minneapolis? Very.

As the advertisement shows, Pepsi is playing a large role in the event, as the “Official Soft Drink” of the MLB All-Star Game.

As attractive as the ad is, sadly, I suspect that only trademark types and dedicated DuetsBlog readers will automatically have their attention drawn to the “grip-able” portion of Pepsi’s new bottle design, launched last year — recall this little gem?

By way of dramatic update, Pepsi’s new bottle design was registered — yesterday — as a non-traditional trademark, see here.

The description of the mark reads:

“The mark consists of a configuration of product packaging in the nature of a three-dimensional bottle having a flat label panel on the top half, with a decorative band below the label panel containing a diagonal pattern, the bottle having concave sides where the diagonal pattern appears. The matter shown in the mark with dotted lines, the closure and footed base, is not part of the mark and serves only to show the position or placement of the mark.”

The “decorative band” reference is hardly the whole truth is it?

To that point, it is certainly interesting that functionality was never explored by the Examining Attorney at the USPTO (or addressed by Pepsi), instead the focus of the examination was on whether the bottle design is merely a non-distinctive package configuration, and Pepsi was able to convince the Examining Attorney that the bottle shape is inherently distinctive, with this response.

Apparently the Examining Attorney never considered any of the media coverage that we addressed last year? What, no dedicated readers among the Examining Corps?

Given how functionality is a challenge that can be raised “at any time” under the Lanham federal trademark statute, what might that mean for Pepsi when it comes time to enforce rights in this non-traditional trademark registration, now, or ever?

To the extent Pepsi’s early missteps in focusing on the functional aspects of the bottle design changes would support a viable challenge to invalidate the registration and any non-traditional trademark protection, reading the recent writing of the legendary Tony Fletcher (and one of my former partners) might provide an important pause for Pepsi:

“[I]f trademark registration of functional matter is not refused and a registration issues, the functional matter is a ticking time bomb . . . .”

Hopefully for Pepsi, the only explosions that will be heard during this MLB All Star extravaganza will be fireworks, and not the kind of functionality time bomb Tony has warned about.

Coca-Cola settled on its famous contour bottle design almost 100 years ago, in 1916, after several years of trials with other far less distinctive shapes (at least under today’s standards):

Federal trademark registration data confirms the first use date to be July 8, 1916. The description of the contour bottle design mark in 1960 was: “The trademark consists of the distinctively shaped contour, or confirmation, and design of the bottle as shown”:

The silhouette or outline of the contour bottle design stands alone as a federally registered trademark even without words:

The negative image or silhouette of the contour bottle design is also federally registered as a trademark:

 

 

 

 

 

 

 

 

 

 

 

 

And, now the outline or partial image of the contour bottle design shape even finds itself in multiple other federally-registered formats for the Coca-Cola brand:

 

 

Do these examples make it the most famous fluid trademark that no one is talking about — when they’re talking about so-called fluid trademarks? Sorry, Google Doodles.

Will there ever be a more iconic bottle design or product container? Sorry, Pepsi, no chance.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The beauty in the design to trademark types, of course, lies in the fact that the shape can be owned as a trademark, forever . . . .

The importance of “storytelling” seems to be the buzzword lately when it comes to branding communications and decisions. For example, last August Branding Strategy Insider wrote that “Brands Must Master the Art of Storytelling,” and just last week it wrote twice on the subject, about “Shared Values in Brand Storytelling” and “5 Pillars for Brand Storytelling Success.”

Branding Strategy Insider’s guest-blogger Susan Gunelius, President and CEO of KeySplash Creative identified “five pillars that brand storytellers understand and use to intrigue, engage, and connect emotionally with consumers”:

  1. Speak truthfully;
  2. Infuse personalities into stories;
  3. Create characters your audience will root for;
  4. Include a beginning, middle, and end; and
  5. Don’t give it all away.

With a healthy dose of humility I’d like to suggest the consideration of a sixth pillar, from the perspective of a concerned trademark type: Don’t permit the storyline to kill the IP!

The stories being told about Pepsi’s new bottle design inspired my suggestion for this intellectual property-focused pillar. AdAge recently reported on Pepsi’s new bottle design:

AdAge Image

“The twisted-bottle shape is a standard the brand hopes to build on — Coca-Cola has long been known for its iconic contour bottle shape. [VP of Marketing Angelique] Krembs said the team, including Chief Design Officer Mauro Porcini, who was brought onboard last June, looked in Pepsi’s archives for inspiration and features that were consistent over time.”

“The swirl on the new bottle is an element that goes back to some of the early glass packages,” Ms. Krembs said. “We didn’t want to create a shape that came out of nowhere,” Ms. Krembs said. “It’s not uniform, it’s a little asymmetrical, there’s a little edginess and playfulness, which is consistent with Pepsi’s equities and youthful spirit.”

While marketing types might debate on the persuasive power of the story behind the bottle design, from a trademark perspective, to this point, at least, it appeared totally consistent with a claim of non-traditional trademark ownership in the product packaging. That is, until the unfortunate emphasis on the “swirled grip” bottom portion.

The Dieline elaborates with this quote from Ms. Krembs: “The etched, grip-able bottom allows consumers to have a more stimulating, tactile interaction with the bottle itself.Brand Channel adds: “The new bottle bottom makes it easier to hold and the label covers less of the contents, showing more of the actual beverage.” And, Pepsi answered a question from Chief Marketer, this way: “Consumer testing has shown positive results, with our consumers finding that the new bottle design reflects Pepsi’s playful spirit while providing a grip-able bottom.” It might be best to “get a grip” on the IP, by leaving the focus of the branding storyline on the “playful spirit.”

Of course, the danger of a branding storyline that focuses on a bottle’s “grip” may be viewed as touting function over form, the death-knell for trademark protection covering the shape of product containers and packaging.

An additional risk of functionality is highlighted in the online comments to the AdAge article: “[T]he redesign’s main purpose is to keep the Pepsi logo visible while someone is holding the bottle. Why does that matter? Because the ubiquity of camera phones and social media. They’re leveraging free advertising opportunities to ‘capture the excitement.'”

And, this matters too — from a trademark perspective — because if the “grip-able” portion of the bottle below the label is so designed for “gripping” and to render the label more visible, the specter of functionality begins to enter the storyline. So, it will remain to be seen whether the USPTO holds the “grip-able” part of the storyline against Pepsi’s attempt to secure non-traditional trademark ownership of the bottle shape on functionality grounds.

PTO Drawing

As you may recall, we’ve previously issued a few related warnings to those brand storytellers who have seemingly forgotten about the fragile nature of intellectual property:

So, what do you think, will Pepsi’s applied-for bottle design trademark fail on functionality grounds or will this story have a happier ending?

Irony is something I enjoy capturing, as you already know, especially when it comes to branding. Take this recent image from my favorite hot dog joint in Grand Rapids, Michigan, Yesterdog:

Note the vintage Drink Coca-Cola signage on the wall, directly behind the modern soft drink fountain, delivering only Pepsi products, to my great disappointment. Now, I’m not suggesting this is another example of initial interest trademark confusion at work. Despite Ron Coleman’s protestation to the contrary — that was, but this isn’t. After all, it didn’t bring me into the restaurant, and once in, the impressive variety of vintage signage adorning the walls makes obvious the point that the signage is part and parcel of the look and feel of the place:

What I was surprised to learn from one of the Yesterdog folks is that they’d like to be offering Coke products, but to do so, the Coke representative apparently would require the removal of their non-Coke signs from the walls. Seriously? Why would a brand owner seek to enforce such a requirement, especially when so many of the signs promote the Coca-Cola brand?

Does the Coca-Cola brand really want to be remembered only as a brand from the past — to subliminally reinforce Pepsi’s branding as: The Choice of a New Generation? Now, I didn’t do a sign count, but it took some work to find a vintage Pepsi sign, and even then, it was engulfed with vintage Coca-Cola branding at every turn:

So, could one of our expert branding friends please explain to me how the reported requirement from Coke actually serves to support the Coca-Cola brand, if at all? 

Last, given the title, I trust you’ll agree that this post would not be complete before reminding everyone of all that can go wrong when the words “Pepsi, No Coke” are spoken, at least in the fictitious Olympia Cafe.

   

We’ve spent some time here discussing the world-famous Coca-Cola brand. Most recently, David Mitchell wrote about the incredible consistency of the Coca-Cola brand over the past 125 years. A while back Dave Taylor wrote a nice Ode to the Brand of Brands, the King of Cola: Coke.

And, let’s not forget my humble suggestion that a roadside sign promoting Coca-Cola at a drive-in restaurant that actually sells Pepsi instead of Coke, might be a good example of an appropriate application of the initial interest confusion test.

But, what about Coca-Cola’s frequent reference to "taste infringement" — some cleverly novel and suggestive legalese apparently coined by the Coca-Cola brand a few years back with its launch of Coke Zero?

Putting aside Brent’s fair question of whether the ads are a good idea, some of my favorite ads have been the Coke Zero viral ads, where a variety of lawyers are punk’d on hidden cameras, led to believe they are being interviewed by Coca-Cola representatives to take legal action for "taste infringement" — against the Coca-Cola team down the hall, the rival team of co-workers behind the Coke Zero launch. This one is my favorite, with lines such as these:

"Are you aware that Coke Zero tastes a lot like Coca-Cola?"

"There might be some taste infringement issues."

"I think it’s basic taste infringement, I’d like to stick with that phrase."

"Basically, a patent/copyright, a little too closely."

The ads are silly and I suspect most viewers appreciate the ridiculousness of Coca-Cola suing itself, but I’m not so sure people understand "taste infringement" to be a ridiculous or faux-legal claim — especially in this environment of increased focus and attention on the expansiveness of intellectual property rights. So, perhaps you heard it here first, there is no such legal claim.

In The Great Chocolate War, as reported by Jason Voiovich, the legal claim that Hershey’s — owner of the coveted Reese’s brand — brought against Dove’s competing peanut butter and chocolate candy, was based on trade dress. Notably, there was no asserted claim of "taste infringement". No one owns the combined taste of peanut butter and chocolate, thank goodness.

That’s not to say, however, that there aren’t intellectual property rights impacting the human sense of taste. For example, with respect to trademarks, we’ve written before about the possibility of taste being the subject of a non-traditional trademark, but to the best of my knowledge, none has been acknowledged or even identified to date. If you have information to the contrary, please share your insights here.

Of course, there is a reason for the lack of or scarcity of taste trademarks. Any product intended for human consumption is unlikely a candidate for taste trademark protection given the functionality doctrine. So, Coca-Cola can’t stop another from selling a beverage that has the same taste as Coca-Cola, just because it tastes the same, unless of course, the maker of the competitive beverage hired away key Coke employees who unlawfully revealed the closely guarded secret formula. That is how trade secret litigation happens, not "taste infringement" litigation.

Continue Reading Taste Infringement?