Coke loses bottle-design battle

CATHERINE HARRIS
Last updated 17:06 18/12/2013
Coca-Cola and Pepsi bottles
CHOICE: High Court rules Frucor's 300ml Carolina Pepsi bottle unlikely to be mistaken for Coca-Cola bottle.

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Frucor has won an intellectual property battle with Coca Cola in New Zealand over the design of one of its plastic bottles.

Japanese-owned Frucor, which bottles and distributes Pepsi in New Zealand, was taken to court by The Coca-Cola Company on the grounds that consumers might be misled into thinking they were buying a Coke.

But a ruling from the High Court at Auckland has found that Frucor's 300ml Carolina bottle was unlikely to deceive or misled anyone.

Judge Edwin Wylie said there had been no evidence of any confusion in the four years that the products had sat on the shelves side by side.

He acknowledged that the Coke bottle's silhouette was important to Coca-Cola, but questioned why it had taken almost a year for the company to complain.

It had also not complained in most of the countries where the Carolina bottle had been used since 2005, only issuing proceedings in New Zealand, Australia and Germany.

Further, Judge Wylie noted the Frucor bottle had won a design award in the UK with no controversy.

Lawyers for Coca-Cola argued that the Carolina bottle was too similar to Coke's 330ml contour which featured a pinched in "waist," vertical fluting and a curved tapered neck.

Lawyers for Frucor referred to the Carolina bottle's horizontal markings, straight tapered neck and the lack of curved bulges above and below the belt band.

It should be seen as a whole and not judged by three features cited by Coca-Cola, they argued. It also carried PepsiCo's trade and device marks.

Judge Wylie agreed. He noted that about the only similarity between the two bottles was that they both had a waist. 

"On the Carolina bottle it is more gentle and the deepest point is higher. On the [Coke] contour bottle it is lower and more abrupt. Moreover, a waist is a shape in common usage in many bottles. There is no other relevant similarity between the registered trade mark and the Carolina bottle. "

When the two bottles were compared as a whole, "there is no misrepresentation".

As well as dismissing Coca-Cola's claims under the Trade Marks and the Fair Trading Acts, he rejected its claim that Frucor had been "passing itself off" as a Coke bottle.

There was nothing to suggest there had been any consumer confusion, and "nothing to support the assertion that sales have been or are likely to be diverted".

Coke had 90 per cent of the cola market, he added. "It is in a unique position. One would expect that it would readily have been able to find out whether any retailers anywhere in the country are aware of any instances of confusion arising from the presence in the market of the defendants' Carolina bottle.'

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