GERMANY – Coca-Cola has lost its legal case against PepsiCo over the latter’s alleged trademark infringement of Coke’s hallmark ‘Contour Bottle’.
Earlier this month, Germany’s Hamburg Regional Court ruled that Pepsi’s ‘Carolina’ glass bottle – launched in Germany in 2010 - does not resemble Coke’s famous 200ml Contour Bottle.
The Contour Bottle – with its unique pinched-in waist and silhouette features – has packaged Coke in the US since 1916. Coca-Cola holds EU trademarks that give it exclusive rights over use of the bottle shape.
In the case LG Hamburg 513 O 310/11, Coca-Cola accused PepsiCo of trademark violation, saying that the latter’s Carolina bottle copied the Contour Bottle’s shape to take advantage of its reputation and appeal. This diluted the distinctiveness of Coca-Cola’s trademark in the eyes of consumers, Coca-Cola claimed in its suit under Article 9, paragraph 1c of the European Union Community Trade Mark Regulation (CTM Regulation).
The Regional Court disagreed though, and ruled that there is insufficient similarity between the bottles, and hence no consumer confusion or adverse effect on Coca-Cola’s trademark.
The Court said that PepsiCo’s Carolina bottle does not have the Contour Bottle’s distinctive ‘enriched’ belt area and vertical corrugation of the neck and bottle. Instead of vertical grooves like that of the Contour Bottle, the Carolina bottle has wavy horizontal lines.
In addition, the Court said that while the lower part and the neck of the Contour bottle is visually separated by the belt, the PepsiCo’s Carolina bottle lines flow in an uninterrupted course from top to bottom with no interruption from a belt band.
Where bottle shape is concerned, the Court said that basic shape similarity – in this case referring to the waisted basic form – is not enough to establish sufficient similarity.
“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,” the Regional Court said in a press release.
In October 2010, Coca-Cola brought similar proceedings against PepsiCo and Schweppes in Australia, after PepsiCo launched a similar bottle in that country in 2007.