Coke Opening ZERO Genericness Floodgates?

We’ve been writing about the COKE ZERO trademark for nearly a decade now, noting in 2014: “[I]t will be worth watching to see whether the [TTAB] finds that ‘ZERO’ primarily means Coke or just a soft drink having ‘no calories, you know, a drink about nothing . . . .’” Turns out, in May 2016, Coke obtained a favorable decision from the TTAB, ruling that ZERO is not generic for a soft drink category, instead it is descriptive and Coke has secondary meaning in it. With that victory in hand, we then questioned Coke’s thinking in launching obvious generic use of ZERO, welcoming Coke Zero to the Genericide Watch, given this categorical and non-brand use: Then, two months ago, the CAFC decided — on appeal — that the TTAB got it wrong, ruling it: “[F]ailed to consider whether consumers would consider the term ZERO to be generic for a subcategory of the claimed genus of beverages – i.e., the…

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