The Coca-Cola Bottle: A Fragile Vessel for Building a Brand
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Description
The Coca-Cola bottle is among the most famous product packaging in the world. Consumers everywhere instantly recognize the distinctive curvy bottle and understand what it represents. It has been celebrated as a design classic and featured prominently by artists ranging from Norman Rockwell to Andy Warhol. The bottle is not only a cultural icon but also a triumph of branding, its goodwill built up over time by the Coca-Cola Company’s heavy investments in advertising and other forms of marketing. Central to this success has been a multipronged strategy to secure legal protection for the fruits of these investments. For more than a century, the bottle has been a pillar of that strategy, alongside Coca-Cola’s secret formula and the Coca-Cola name itself. Today, the bottle is arguably the world’s most famous example of “trade dress,” a form of federal trademark law that protects product packaging that serves as a designator of source. No one doubts the existence of so-called secondary meaning, that consumer association between the bottle and the Company as a product source. When Supreme Court Justices ranging from Stephen Breyer to Antonin Scalia have written about trade dress, the bottle has served as a primary point of reference. Despite the bottle’s importance, the story of how it reached this exalted position is surprisingly neglected. This chapter is an effort to fill that gap. We seek to recover the early history of the bottle with a view to understanding the interplay of law and marketing that enabled its present success. We draw upon a variety of sources, including the prosecution history of relevant patents, the proceedings of an early infringement suit, and the numerous settlements of litigation initiated by the Company against other soda producers. The latter were collected in a Company-sponsored publication called Opinions, Orders, Injunctions, and Decrees Relating to Unfair Competition and Infringement of Trade-Mark. Opinions and Orders eventually grew to three volumes and was styled to resemble an authoritative bound compilation of case law such as the Federal Reporter. As we explain, intellectual property protection in the early years was fragile and contingent. The story begins in 1914, when the Company’s top lawyer spearheaded the effort to develop a new bottle. We examine the two main forms of legal protection available to the Company during this period. Design patents could protect the new bottle as a novel ornamental design. If successful, the Company would have exclusive rights to the design. Unfair competition law, a precursor to modern protection of trade dress, could protect the bottle as an identifier of source. If successful, rivals would be prohibited from using a confusingly similar bottle to “pass off” their colas as the real thing. Design patent law offered only short-term protection, given that a design patent expired fourteen years from issuance. Unfair competition law offered long-term, effectively permanent protection once secondary meaning was established. The Coca-Cola Company was not the first to employ these legal tools. Others had used design patents to protect packaging or had asserted unfair competition claims against rivals. The Company’s efforts stood out, however, in their aggressiveness and sophistication. For example, it obtained not one but three design patents, which purported to protect the bottle from imitators for about thirty-six years. It avidly sued rivals and published the results in Opinions and Orders. A quotation from Justice Oliver Wendell Holmes adorned the spine as a kind of warning to rivals. Writing for a unanimous Supreme Court, Justice Holmes had declared that the Coca-Cola name “means a single thing coming from a single source, and well known to the community.” By thus establishing that the name had achieved secondary meaning, the quotation simultaneously celebrated the cultural importance of Coca-Cola and handed the Company an important legal victory. By contrast, the Company’s early efforts to protect the bottle were haunted by problems and risks. Its problems began with the first design patent, which covered a prototype that was significantly altered en route to production. That difference left the Company vulnerable because the scope of the patent would not necessarily stretch to cover an alleged infringer that adopted the same shape as the production bottle. Worse, the Company revealed its weak position in an ill-advised patent suit against another soft drink maker. The court in that case construed the patent narrowly, providing a road map for avoidance by others.
Source Publication
The Cambridge Handbook of Marketing and the Law
Source Editors/Authors
Jacob E. Gersen, Joel H. Steckel
Publication Date
2023
Recommended Citation
Gersen, Jacob E. and Hemphill, C. Scott, "The Coca-Cola Bottle: A Fragile Vessel for Building a Brand" (2023). Faculty Chapters. 763.
https://gretchen.law.nyu.edu/fac-chapt/763
