Research on Antiques & Collectibles

COCA-COLA:  The Trademark’s Legal History and some refreshing Trivia

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A trademark is a word/ letter, device, or symbol used by one company to distinguish its product from that of another company. Trademarks are also symbols of good will and have value as such. A firm obtains exclusive rights to a trademark by using it to identify its product(s) before another company does. Trademarks can also be registered with the U.S. Patent Office, but only approximately 10 percent of the trademarks in the United States are. A registered trademark can be lost if not used for two years or if used by the public habitually as a general term for all similar products.

"Coca-Cola," "Coke," and the basic shape or the standard contoured Coca-Cola bottle are all registered trademarks of The Coca-Cola Company. No history of The Coca-Cola Company could be considered complete without a study of its three most famous trademarks. Coca-Cola became the company's first registered trademark on January 31, 1893; Coke, the second trade-mark of the firm, was registered on August 14, 1945; and the basic shape of the Coca-Cola bottle became the third registered trademark of The Coca-Cola Company in 1960.

The importance of The Coca-Cola Company's trademarks can hardly be overstated. The company spends hundreds of thousands of dollars each year protecting its trademarks, which in 1967 were listed as part of the firm's intangible assets valued at three billion dollars. A good many embossed hammered-copper bookends were produced by the Roycroft Shops in East Aurora, New York, the crafts enterprise founded by Elbert Hubbard in 1895. For a number of years, the copper shop was under the direction of Viennese designer Karl Kipp. These bookends ("felt-covered bottoms - will never make a scratch," read the ads in a 1919 catalogue) were made in a variety of shapes, adorned with simple flower or geometric motifs. Today they sell for an average of about $100 to $400.

Throughout the business history of the United States there are examples of trademarks that have been lost to their originators because they became common words for similar products. The National Biscuit Company's "Shredded Wheat" is now just "shredded wheat," a term applied to similar products; the Bayer Company lost the exclusive rights to "aspirin" in 1921; the A. B. Dick company's "Mimeograph" became the generic term "mimeograph" in 1948; the Kellogg Company lost "corn flakes" in 1915; the Charles H. Phillips Company lost "milk of magnesia" in 932; and the duPont Company was forced to concede that both "cellophane" and "nylon" had become generic terms for all similar products.

The list goes on to include many other one-time Brand names which are now generic terms in the public domain: pocket book, cube steak, linoleum, escalator, mineral oil, lanolin, phonograph, and kerosene. Although a company wants to do, and generally does, all it can to make its trademark well known, it does not want its trademark to become so well known that people begin to use it, without a capital letter, to represent all similar products.

During the late 1930's and early 1940's The Coca-Cola Company led other large corporations n the fight to protect trademarks. The continuous battle by The Coca-Cola Company to keep 'Coca-Cola" and "Coke" as registered tradenarks is paralleled by other firms' trying to remain exclusive rights to such brand names as Adrenalin, Band-Aid, Benzedrine, Dacron, Deep-Freeze, Dictograph, Dictaphone, Dry Ice, Fiberglas, Frigidaire, Jeep, Jell-0, Laundromat, Levi's, Mercurochrome, Photostat, Ping-Pong, Pyrex, Simonize. Spray Net, Tabasco, Technicolor, Teleype, Thermo-Fax, Vaseline, Victrola, and Wind-Breaker. One can see that it may already be a losing battle for some of the brand names listed.

Over the years The Coca-Cola Company has been besieged by imitations. It would take many pages just to list them. The Coca-Cola Company has ignored some and has actively fought others n court. In 1921 a judge, while defending Coca-Cola against an imitator called Taka-Kola, spoke at length about his decision:

In the instant case the defendant's mark "Taka-Kola" consists, as does "Coca-Cola," of two words, each of four letters and of two syllables. In each phrase a consonant and a vowel alternate, there being in each four of the one and four of the other. Plaintiff's "a" and "o" each appear twice. Defendant's has three "a's" and one "o." The consonant "\" is common to both and in each is the seventh letter from the beginning. Plaintiff's contains three "c's," having in every instance the hard or "k" sound. Twice defendant replaces the "c" with a "k," and once by a "t," the use of which last must be relied upon to distinguish the two words, for in every other respect they are for all practical purposes identical. The two words of plaintiff's are united by a hyphen; so are those of the defendant. The plaintiff displays its [mark] in script. The defendant has followed suit. ... It taxes credulity to believe that so close a resemblance was accidental.

In the 1880's a woman named Diva Brown, for a brief period, was a business associate of John S. Pemberton, the inventor of Coca-Cola. As a result of the association, Mrs. Brown claimed that Pemberton had sold her the original Coca-Cola formula. To the chagrin of The Coca-Cola Company she traveled the South manufacturing such imitations as Celery-Cola, Better-Cola, Lime-Cola, My-Cola, Vera-Cola, and the like. Mrs. Brown died in 1914.

A product called "Koke" gave The Coca-Cola Company fits for years. The Coca-Cola Company took the Koke Company to court in 1909, and the arguments went on until they had reached the United States Supreme Court. In 1920 The Coca-Cola Company finally won the case, with Supreme Court Justice Oliver Wendell Holmes stating that Coca-Cola is a "single thing coming from a single source and well known to the community."

The Koke case was not the last for The Coca-Cola Company; since 1920 the company has been involved in more than four hundred cases to protect its trademarks. Of all its cases, however, one more than any other taught the company a lesson the hard way. In 1931 a chain of candy stores owned by a company called Loft, Inc., become upset because The Coca-Cola Company would not sell them syrup at a discount. To combat what they considered a problem. Loft, Inc., purchased the almost bankrupt Pepsi-Cola Company for twelve thousand dollars. The Coca-Cola Company had previously passed up the opportunity to buy Pepsi-Cola for the same amount. Because Loft, Inc., was selling its customers Pepsi-Cola when they ordered Coca-Cola, The Coca-Cola Company became upset. Within a year the two firms were engaged in more than thirty lawsuits in over a dozen countries. It took ten years for the courts to come to a final decision. On March 19, 1942, the Privy Council of England upheld a series of decisions made in 1939 by the Supreme Court of Canada.

The result was a real blow to a perhaps overconfident Coca-Cola Company. The decision was that "Pepsi-Cola" was not an infringement on the trademark "Coca-Cola." The loss by The Coca-Cola Company of the "Cola" part of its trademark resulted. So in 1942 the trademark "Cola" became the generic word "cola." Shortly thereafter, to prevent further assault on its trademark, The Coca-Cola Company removed "Trade Mark Registered" from the tail of the "C" in "Coca" and positioned it above the entire trademark "Coca-Cola." While other firms may use "cola" as part of their trademark (and many have), the trademark "Coca-Cola" remains the property of The Coca-Cola Company.

Even the ultimate court decision against Coca-Cola in 1942 might not have hurt The Coca-Cola Company if in 1939 the Pepsi-Cola Company had not hit upon the merchandising scheme that was to put it in a position to compete successfully with Coca-Cola. The Pepsi-Cola Company introduced its classic twelve-ounce bottle and the jingle "Twice as much for a nickel, too."

The battle between Coca-Cola and Pepsi-Cola has been a continuous one since the early skirmishes in 1931. Of special interest to collectors is a court battle between the two firms that began in November 1957, in England and was not resolved until February, 1959. The problem centered on a bottle design that the Pepsi-Cola Company had planned to issue in England. The Coca-Cola Company felt that the new Pepsi-Cola bottle too closely resembled its classic Coca-Cola bottle and went to court to prove it. Whether the bottle was ever actually used remains a mystery; collectors feeling that the questionable bottle was indeed used are constantly searching for a specimen to add to their collections. The outcome of the court case was equally mysterious. The settlement was made out of court. It was so secret that a clause in the agreement read, "No party to this agreement shall publish or cause to be published for public distribution the terms of this agreement." All that is publicly known for sure is that the objectionable bottle was eliminated. The full story will have to wait a future time. Meanwhile collectors still search for the mysterious bottle.

How The Coca-Cola Company continues to do battle to protect its trademarks can be seen in a number or ways. There are numerous stories of how The Coca-Cola Company reacts when somebody violates its trademark by not capitalizing its name. One story deals with the famous American novelist John Steinbeck. In 1947 Steinbeck wrote a book called The Wayward Bus, Throughout the book there are references to "Pepsi-Cola," all properly capitalized, but on page 128 Steinbeck wrote:

" 'Now, let's have a couple of cups of coffee, he said. And to the blonde/ 'You rather have a coke?' " 'No. Coffee. Cokes make me fat.' "

Then again, on page 182, Steinbeck wrote:

" 'Got any coke?' he asked. " 'No,' said Breed. 'Few bottles of Pepsi-Cola. Haven't had any coke for a month. It's the same stuff. You can't tell them apart.' "

To the letter from The Coca-Cola Company protesting Steinbeck's use of its trademark without a capital letter, he replied, "In English when 1 word is spelled with a small 'c' and is still acceptable, it has become a great word. Only the Small need to capitalize." Since its loss to the Pepsi-Cola Company, The Coca-Cola Company has constantly issued pamphlets, booklets, and the like explaining to editors, announcers, and so forth the correct use of its trademark. In most cases the company overstates its requirements and greatly handicaps those involved in the use of its trademarks.

Some typical examples can be found in a pamphlet produced in 1956 entitled Conversational Guidelines about "Coca-Cola" & "Coke" and subtitled, "For the confidential use of radio announcers, disc jockeys and other program personnel." The seven points made in this booklet are reproduced here.

1. Coca-Cola and its companion trade-mark, Coke, Identify a particular brand of refreshment. These Trade-marks may be used any time you wish to talk about a situation in which something good to drink t appropriate, such as, "Man, wouldn't an ice cold Bottle of Coke go good right about now"! (Never use Coca-Cola or Coke as a generic term or as a general name for refreshment. The two trade-Marks, Coca-Cola and Coke, refer only to the product of The Coca-Cola Company.)

2. As trade-marks for the world's most popular soft [rink, Coca-Cola and Coke should be used as any other brand name, such as, "It's time for a Coke" or “Serve plenty of Coca-Cola at your next party". (Never use either trade-mark as a common adjective, such as, "Coke time", "Coke party" or the like. This encourages general use of the trade-marks in place of specific Identification of the product.)

3. Like deer and elk and a host of other words, Coke and Coca-Cola are both singular and plural. Use each mark to represent one or many. The container bottles, glasses or cups) Coke comes in may vary, lit the trade-mark is always "Coke" or "Coca-Cola". (Never say, "All the cats had Cokes". Instead, say, ”All the cats had bottles—or glasses—of Coke" !)

4. In the same way, since trade-marks identify or refer only to the product, they should not be personalized or personified. The Company that makes the product is The Coca-Cola Company; the Company that distributes the product is The Coca-Cola Bottling Company. These Companies do things like sponsoring programs, the product Coca-Cola does not. Thus, a name for a show would be "Refreshment Time, brought to you by your friendly neighbor who bottles Coca-Cola"! (Never say, "Coca-Cola's Saturday Recording few" or "Coke's Announcer".)

5. The product, Coca-Cola, is available in containers of many different sizes, but the product is the same great drink in each and does not vary. When you talk about the various sizes of containers, be sure you identify the container and not the product. For example, Coca-Cola is sold in Regular Size, King Size, Half Quart and Family Size bottles, both returnable and one-way. Coke is also served in King Size and Jumbo Size drinks at the fountain. Be sure to check your area to see which size bottles are available and which you should talk about. (Never say, "King Size Coke" or "Big Coke", say instead, "Coke in thrifty Hall Quarts" or "Coke in big Half Quart Bottles".)

6. Advertising copy for any product changes from time to time. For example, we use the advertising slogan "The Pause That Refreshes" from time to time. Instead, the phrase "Things Go Better with Coke" is used prominently, and specific suggestions are often coupled with this slogan. Slogans, however, never take the place of the trade-mark. (Never say, "Coca-Cola is the Pause That Refreshes", instead say, "Ice cold Coca-Cola for the Pause That Refreshes", it you are using this slogan!)

7. Coca-Cola and Coke are of equal status trade-mark-wise and may be used interchangeably, but the trade-mark Coca-Cola must be used at least once in every commercial message. (Never use Coke only, instead say Coke and then refer to the product as Coca-Cola the next lime you mention the brand name".)