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Moot Opposition for Zero Disclaimer

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by Dennis Crouch

Royal Crown Co. v. Coca-Cola (Fed. Cir. 2020)

The case right here focuses on Coca-Cola’s trademark registration purposes for its beverage merchandise with the ZERO time period appended.  We’re speaking COKE ZERO; CHERRY COCA-COLA ZERO; PIBB ZERO; POWERAID ZERO; and many others. Royal Crown argued that the registrations ought to solely be allowed if Coca-Cola disclaimed the time period “zero.”

I beforehand wrote about this case when it was first appealed in 2018. At the moment, the TTAB had dismissed the oppositions — discovering an absence of proof that the time period ZERO is generic for the time period “zero-calorie” or “zero-sugar” even when used to label in any other case sugary comfortable drinks. On enchantment, the Federal Circuit vacated and remanded after concluding that the Board had, inter alia, utilized the inaccurate authorized commonplace for generic. In my publish, I said that “Coke may register these marks if it disclaimed safety to ZERO alone.” Dennis Crouch, Registering ZERO: Trademarks mean Nothing to Me, Patently-O (June 20, 2018).

On remand the TTAB began the method of going by means of a brand new research on whether or not the time period is generic. Coca-Cola minimize that course of quick by way of motion-to-amend its marks to deny the time period ZERO. This happy the TTAB and the oppositions have been dismissed.

Royal Crown although was not happy and appealed. The corporate was involved that Coca-Cola might file new purposes or broaden the scope of its present marks in some future litigation. Thus, it requested for a reasoned opinion explaining that the ZERO portion was generic.   As well as, Royal Crown argued that it was improper underneath the APA for the TTAB to dismiss the case post-trial primarily based upon this opposed modification.  Quite, the APA requires a reasoned opinion.

On this second enchantment, the Federal Circuit has successfully affirmed the PTAB dedication — discovering that the enchantment is moot as a result of Royal Crown has acquired the complete treatment that it requested.

Coca-Cola’s disclaimer grants Royal Crown what it sought in its opposition. All through this case, Royal Crown requested solely that the Board require a disclaimer of the time period ZERO earlier than registering the marks at subject. . . .

Royal Crown has obtained what it requested in its opposition, disclaimer of the time period ZERO in every of the trademark purposes at subject. The Board’s choice displays entry of these disclaimers. Accordingly, there is no such thing as a case or controversy for this courtroom to resolve.

Relating to Royal Crown’s concern relating to future enlargement of the mark, the Federal Circuit discovered that potential hurt “too speculative to invoke the jurisdiction of this courtroom.”

On the procedural grounds, the Federal Circuit additionally discovered no abuse-of-discretion in granting the disclaimer — nevertheless that holding is outmoded by the mootness choice.

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