The Coke Recipe, Trademark and Trade Secret Law, and The New York Times

Did you hear about the radio show that found the secret formula for Coca-Cola — a decade or so ago in a story on the third page of an Atlanta newspaper? Ira Glass, who narrates This American Life, told about the find in a February program. See (and hear!) Original Recipe. The listener response crashed the show's server. Yesterday, The New York Times picked up the thread. Ran with it. And perhaps tripped over it. The cause of the possible stumble? Your normal everyday confusion about types of intellectual property. The Times item said near the end that Coca-Cola doesn't "file trademark lawsuits against imitators because it would have to reveal the actual formula in court." But we know, don't we, that trade secret law, not the trademark kind, protects any rights Coke may enjoy in the True Way of making the Real Thing? The law of trademarks applies to words, phrases, symbols, logos, and shapes — not to mention (sometimes) colors, like the light blue of Equal packets, and sounds, such as the husky rumble of a Harley — that somehow inform people what firm makes, or vouches for, products customers may want to buy. Trade secret law, by contrast, aims to stop misuse of confidential info that gives the owner a leg up over competitors. The necessarily public nature of a trademark means that the trademark doesn't qualify for trade secret protection. How could the "imitators" get in trademark or trade secret trouble for using the Atlanta Journal-Constitution's list of Coca-Cola components? They don't use Coke logos or claim that Coke makes or sponsors what they produce. They didn't get the list by theft. And so Blawgletter has a hard time seeing either a trademark infringement or a trade secret misappropriation. But wait. Could the Paper of Record have meant that the imitators diluted Coca-Cola trademark rights by using ads that call their Brand X drinks a fair copy of the Coke recipe and therefore "tarnish" Coca-Cola trademarks? That sounds more like it. See "Blurring the Mark (Update)" That leaves the question of why the maker of a Brand X rip-off could force Coke to disclose the current genuine formula. We suppose if Coke sued Brand X for falsely claiming to use the current Real Thing recipe, Coke might have to show just what it contains. But even then disclosure seems unlikely. A court might call on Coke to lay out with what Herculean Labors it Preserved Secrecy, but after that the court would require Brand X to show the basis for its claim. Where you got the formula, for instance. The bank vault that Coca-Cola keeps it in, you say? Really? Hmmm. The small — vanishingly tiny — risk that Coca-Cola would have to reveal its true mix of ingredients seems more in line with another point of Original Recipe and the Times story: the masterful job that Coca-Cola has done in parlaying the mystique of its secret formula into billions upon billions of dollars in sales. Genius.

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