PepsiCo bottle does not infringe Coke ‘Contour' trademarks – German court
The Hamburg Regional Court said – in a verdict delivered on May 31 in the case LG Hamburg 315 O 310/…The Hamburg Regional Court said – in a verdict delivered on May 31 in the case LG Hamburg 315 O 310/11 – that Coke had moved to forbid PepsiCo to use the bottle, launched in Germany in 2010.
Coke is synonymous with its famous 200ml ‘contour’ glass bottle (pictured in a 1950s image) and the firm holds EU trademarks conferring it with exclusive rights regarding use of the shape.
The bottle’s famous pinched-in waist and silhouette distinguish it from other bottles on the market, and it has used to package Coke in the US since 1916.
Attractiveness and reputation
But in this suit Coke urged trademark violation, arguing that the PepsiCo shape took unfair advantage of the attractiveness and reputation of its own bottle, diluting the distinctiveness of Coca-Cola’s trademark in the eyes of consumers.
However, the Regional Court said in a press release issued in German that Coke’s suit under Article 9, paragraph 1c of the European Union Community Trade Mark Regulation (CTM Regulation) had failed due to insufficient similarity between the bottles.
The court said that Coca-Cola’s trademark would not be damaged by the presence of PepsiCo’s bottle on the market, nor would consumers be confused.
Basic similarity in regard to shape – a waisted basic form or the presence of a waist on the bottle – was insufficient to establish sufficient similarity, the court said.
“The scalloped shape of the bottle is used by many manufacturers and so is a generally accepted aesthetic and functional basic shape that is not eligible for protection,” it added.
Enriched belt area
Coke’s bottle was distinctive due to its ‘enriched’ belt area and vertical corrugation of the neck and body, with the lower part of the bottle and the neck“significantly” visually separated by the belt, the court said.
But PepsiCo’s Carolina bottle did not have a central belt band, and unlike Coke’s had no vertical grooves, instead featuring horizontal wavy lines. The bottle’s lines proceeded in an uninterrupted course from top to bottom, with no interruption from a belt band, the court added.
Coca-Cola brought similar proceedings against PepsiCo and Schweppes in Australia in October 2010, in The Coca-Cola Company v PepsiCo Inc. & Others, VID 876/2010, after PepsiCo launched a similar bottle onto that market in 2007. Neither PepsiCo nor The Coca-Cola Company in Germany had responded to our request for comment before we went to press.
