Pepsi vs Coke. Not taste, but trademark infringement

It seems it is a never ending fight between the two companies Coca Cola and PepsiCo. They battle each other all the time. They both host events where they try to determine which tastes better and such.

Recently Coca Cola accused Pepsi of trademark infringement on its bottle design. The company claims Pepsi is infringing on a 1937 design for its glass bottles.

How it all started

In August 2007, Pepsi released a glass bottle of its own in Australia, known as the Carolina Bottle which led to Coke initiating this proceeding in October 2010. Coke’s Contour Bottle and Pepsi’s Carolina Bottle are depicted below.
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Why Coca Cola say’s it is infringement

Coke alleged that the Carolina Bottle infringed four of Coke’s Australian registered trade marks for its iconic Contour Bottle and that Pepsi had engaged in misleading or deceptive conduct and committed the tort of passing off.

Significantly, Coke framed its trade mark infringement case both on the basis that Pepsi used the whole bottle shape of the Carolina Bottle as a trade mark or specifically used the outline or silhouette of the Carolina Bottle as a trade mark.

In addition to the claims of trade mark infringement, Coke alleged that Pepsi had:

  • engaged in misleading and deceptive conduct, as Coke’s business and goods have become widely and favorably known and identified in the minds of consumers throughout Australia by reference to the Contour Bottle and the Coke Marks, and that members of the public in Australia expect to be dealing with Coke, or persons authorised or approved by or otherwise associated with it, when they are offered Pepsi beverages for sale in the Carolina Bottle
  • passed off its Pepsi beverages as products of, or licensed by Coke, through the use of the Carolina Bottle.

The result. Coke loses the case.

On 28 November 2014, the Federal Court of Australia (Court) dismissed claims of trade mark infringement, misleading or deceptive conduct and passing off made by The Coca-Cola Company (Coke) against PepsiCo Inc, PepsiCo Australia Holdings Pty Ltd, and Schweppes Australia Pty Ltd, the manufacturer and distributor of PepsiCo Inc’s products in Australia (collectively referred to as Pepsi).

Coke’s action arose out of Pepsi’s release of the glass ‘Carolina Bottle’, which Coke alleged infringed the rights and reputation of its iconic glass ‘Contour Bottle’, or its outline or silhouette. Via klgates.com

Here is what the two bottles looked like:

coke vs pepsi trademark infringement

I guess we cannot discuss which side is right or wrong since the court already said PepsiCo was not infringing.

I wish Coca Cola brought glass bottles back to the US. They own the rights to distribution here after buying back the bottling company. Instead I have to buy Coca Cola imported from Mexico. It comes in the iconic glass bottle and has real sugar in it. It is the only Coke I will drink. I am no fan of corn syrup, specially after I found out about how mercury was found in half of corn syrup that was tested. Ok, I am getting off topic now.

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