Federal Circuit Zeros In On Genericness And Acquired Distinctiveness

Addressing the proper analysis for assessing genericness and acquired distinctiveness of a trademark, the US Court of Appeals for the Federal Circuit vacated a US Trademark Trial and Appeal Board (TTAB) decision denying an opposition to applications filed by one soft drink company against the applications of another to register various trademarks containing the word ZERO. Royal Crown Company, Inc. et al. v. The Coca-Cola Company, Case No. 16-2375 (Fed. Cir., June 20, 2018) (O'Malley, J).

Royal Crown makes and distributes beverages under various trademarks, including the marks DIET RITE PURE ZERO and PURE ZERO. Royal Crown applied to register these two trademarks and disclaimed the word ZERO. Coca-Cola also makes and distributes beverages under various trademarks that include the word ZERO, such as COKE ZERO. Coca-Cola also applied to register many of its ZERO trademarks. The US Patent and Trademark Office (PTO) issued an office action asking Coca-Cola to disclaim the