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Justice Holmes: Coca-Cola contains neither coca nor cola. Discuss.

Posted by on Sep 11, 2011 in Hilarious Moments in IP, IP Law, Trademark | Comments Off

Hilarious Moments in IP Law

Coca-Cola Co. v. Koke, Co., 254 U.S. 143 (1920)

Once, long long ago, a tiny, unsuspecting American beverage company with a product by the name of Coca-Cola, encountered a big-bad-wolf type: Koke. This “Koke” character also made delicious “brown-flavored” beverage, and Coca-Cola took issue with this. In fact, they took issue with this all the way to the Supreme Court of the United States.

Coca-Cola Co. sued Koke Co. for trademark infringement. Koke’s defense was simple: “Yeah, maybe,” they said, “but you’re a jerk.”

Specifically, Koke contended that the Coca-Cola “trademark, in itself, and the advertisements accompanying it made such fraudulent representations to the public that the plaintiff had lost its claim to any help from the court.” (254 U.S. 143 at 254.) The issue was, of course, that despite the name “Coca-Cola” the brown beverage contained neither cocaine, nor cola nuts. (No un-cola nuts either, for that matter.) Indeed, Coca-Cola used a logo which included coca leaves and cola nuts! False advertising!

According to the esteemed Justice Holmes, who delivered the opinion of the court: “[A] man is not to be protected in the use of a device the very purpose and effect of which is to swindle the public.” This is still very much a pillar of trademark law – the courts and the USPTO will not help you enforce a trademark built on lies. The court pointed out, however, that Coca-Cola used to contain significant, if small, amounts of both coca and cola, but that due to changes in public opinion and Federal regulation, it now only included de-cocaineized coca leaves. (What? What’s the point of that?)

[B]efore 1900, the beginning of the goodwill [in the Coca-Cola trademark] was more or less helped by the presence of cocaine, a drug that, like alcohol or caffein or opium, may be described as a deadly poison or as a valuable item of the pharmacopoeia, according to the rhetorical purposes in view.

Luckily, in the interim, the “Coca-Cola” mark had achieved secondary meaning! At some point, the court held, the trademark “Coca-Cola” stopped meaning “a beverage containing coca and cola” to the general public, and started meaning the particular brown, flavored beverage made by the Coca-Cola Co. “It means a single thing coming from a single source, and well known to the community.” (at 254) So, as far as the Court saw, no one cares that Coca-Cola doesn’t have cocaine or cola nuts in it. It still tastes awesome. (Especially Cherry Coke. No word yet on Diet Coke.) So Coca-Cola wins, and Koke has to go home and change its name, and perhaps pay for its own advertising for once.

Justice Oliver Wendell Holmes and his Magnificent Moustache

The last little paragraph of the opinion is also pretty hilarious. In addition to trying to keep the Koke people from using the “Koke” name for their product, Coca-Cola tried to keep them from using the word “Dope.” Evidently, the word “Dope” used to be used for Coca-Cola. You’d order “Dope” at the soda fountain and get Coca-Cola. Justice Holmes did not, however, find that “Dope” had acquired the same sort of meaning as Coca-Cola, in that

the word is one of the most featureless known even to the language of those who are incapable of discriminating speech. In some places it would be used to call for Coca-Cola. It equally would have been used to call for anything else having about it a faint aureole of poison.

So there you have it. Koke is confusingly similar to “Coca-Cola,” which is not made of drugs, and “Dope” is a generic term for beverages made of drugs, including but not exclusive to Coca-Cola. Whatever.

The Coca-Cola Company was so pleased with the outcome of this case that they started sponsoring casebooks about trademark law for some period of time, including the ones pictured on my Trademark Law page. I came across them in the University of Washington Law Library one day, and thought they were pretty rad.

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