[00:00:56] Speaker 02: The next case is number 16, 2375, the Royal Crown Company against the Coca-Cola Company. [00:01:04] Speaker 02: Whenever you're ready, Ms. [00:01:05] Speaker 05: Rosenberg. [00:01:48] Speaker 05: Good morning, Your Honors, and please the court. [00:01:51] Speaker 05: Royal Crown's opposition in this proceeding sought one thing, to have the Coca-Cola Company disclaim zero from 17 trademark applications for marks like Coke Zero, Sprite Zero, Fanta Zero, and thereby disclaim the exclusive right to use the term zero apart from the marks as a whole. [00:02:10] Speaker 05: We believe a disclaimer is mandated in this circumstance because zero, as used for zero calorie soft drinks, cannot function as a mark. [00:02:18] Speaker 05: Either the term is generic, or if it is instead merely descriptive, there is a lack of evidence showing that it signifies the Coca-Cola company exclusively. [00:02:29] Speaker 05: We believe the board made errors in deciding both of the issues that we raised below. [00:02:33] Speaker 00: Would we have to decide the genericness question, actually decide it, if we agreed with you about the inadequacy of proof, or at least inadequacy of board's reasoning on acquired distinctiveness? [00:02:48] Speaker 05: Well, this court has previously taken the position that if you don't have acquired distinctiveness, that's sufficient. [00:02:54] Speaker 05: I believe it was the Louisiana fish fry product case where the court decided that there wasn't sufficient evidence of acquired distinctiveness. [00:03:03] Speaker 05: The court didn't reach the issue of genericism. [00:03:05] Speaker 05: And I think Judge Newman, in her concurring opinion, said that the court should have reached the issue of genericism, found that the Louisiana fish fry products portion of the mark was generic. [00:03:16] Speaker 05: and then not reach the issue of acquired distinctiveness. [00:03:19] Speaker 05: I think in fairness to the law, the court should address the issue of genericism, even if it were to find that the Coca-Cola company hadn't sufficiently showed acquired distinctiveness. [00:03:29] Speaker 04: Because genericism affects the required showing for acquired distinctiveness, correct? [00:03:36] Speaker 05: Well, there's a couple of reasons, Your Honor. [00:03:38] Speaker 05: One, genericism [00:03:40] Speaker 05: is a little bit, I would say, more permanent than lack of acquired distinctiveness. [00:03:44] Speaker 05: I mean, in theory, if you don't have acquired distinctiveness today, there could be some situation a couple years, five years, 10 years, 20 years down the line, where acquired distinctiveness could be shown. [00:03:54] Speaker 05: It's much harder to rescue a term from genericism. [00:03:57] Speaker 05: And I would suggest that probably a term couldn't be rescued from genericism. [00:04:02] Speaker 05: It also does affect what type of evidence is considered by the court. [00:04:07] Speaker 05: As we argue in our brief, there's certain evidence [00:04:10] Speaker 05: that shouldn't be considered on genericism, namely the question of acquired distinctiveness. [00:04:15] Speaker 05: I hope I've answered your question. [00:04:17] Speaker 04: What would be the difference if there was a disclaimer of zero, but Coke Zero sought a combination mark as to its own individual marks? [00:04:35] Speaker 05: I'm not sure I understand your question, but [00:04:39] Speaker 05: The disclaimer works. [00:04:40] Speaker 05: You're just claiming a particular portion of the mark. [00:04:42] Speaker 05: In this case, the term zero. [00:04:44] Speaker 05: So there's no question that Coke Zero, for example, should be registered. [00:04:48] Speaker 05: We just think the zero portion should be disclaimed. [00:04:51] Speaker 05: And that would affect what we believe that would affect what the Coca-Cola company could do with its marks down the line, how it could enforce them against third parties as one example, and particularly relevant to our clients, Royal Crown and Dr. Pepper 7 Up. [00:05:07] Speaker 00: How would it affect their enforcement? [00:05:09] Speaker 05: Well, it's a little unclear because even though the Coca-Cola company has been claiming rights in Xero since 2004, I believe there is an evidence in the record that they've gone after anyone except for two companies who have used Xero in the marketplace, one being our client diet right, Pure Xero, and another being a company that distributed a product called Palmberry Xero. [00:05:33] Speaker 05: That's the only evidence in the record of demand letters that were sent. [00:05:37] Speaker 05: and both of those companies rejected the Coca-Cola's claims of rights and zero. [00:05:42] Speaker 05: So what the Coca-Cola company will do if and when it wins this appeal, who knows what it would do if it loses this appeal. [00:05:49] Speaker 05: We hope that it would finally understand that it can't enforce zero against third parties and would everyone in the industry, the Coca-Cola company, our client PepsiCo and the tens and dozens of other companies in this industry could have more freedom to feel like they could use zero comfortably. [00:06:06] Speaker 05: But again, we really don't know what the Coca-Cola company would do. [00:06:13] Speaker 05: So on the issue of genericism, there were two errors with the board. [00:06:17] Speaker 05: The first one we believe is that the board held royal crown to the wrong standard. [00:06:22] Speaker 05: The legal test enunciated by the Marvin Ginn Court is clear. [00:06:26] Speaker 05: The question is, is the term sought to be registered, understood by the relevant public, primarily to refer to the relevant genus of goods? [00:06:34] Speaker 05: And what the board did was hold royal crown to a different standard of showing that zero is the name of a category of goods. [00:06:42] Speaker 05: And this isn't just a question of semantics. [00:06:44] Speaker 05: This actually makes a real difference. [00:06:46] Speaker 05: Because case law from this court and others is clear that refer to a genus as used in the Marvin Ginn opinion in other courts means something broader than and sometimes something different than the name of a category. [00:06:59] Speaker 05: And as two examples from this court, [00:07:02] Speaker 05: We have the recent case of Henry Cordua restaurants where the term churrascos was deemed to be generic for restaurant services because the restaurant could serve churrascos, which is apparently a type of meat. [00:07:13] Speaker 05: And another case going back a few years, Henry Reed Eshelver, where the phrase lawyers.com was held to be, or the term lawyers.com was held to be generic for a website featuring legal services because a key aspect of those services was to help users find lawyers. [00:07:29] Speaker 05: So those case and others [00:07:31] Speaker 05: show that it doesn't have to be the name of a category. [00:07:34] Speaker 05: Lawyers.com is not the name of a category of websites, but it was still held to be generic. [00:07:40] Speaker 05: And the result of this was because the board held the royal crown to the wrong standard, it also discounted a large amount of evidence that did go to the issue of whether consumers understand zero to refer to a genus of goods, even if they don't use it as the name of a category of goods. [00:07:57] Speaker 03: So the genus of goods would be what? [00:08:00] Speaker 03: Sugar-free sodas or sodas generally? [00:08:05] Speaker 05: The genus of goods is, as this court has decreed and as the board decided, is what is in the Coca-Cola company's trademark applications. [00:08:14] Speaker 05: And those concern, there's some debate about the question of what the soft drinks mean, but it's soft drinks, syrups and concentrates for making the same. [00:08:22] Speaker 05: Some of them also specified energy drinks, concentrate syrups or [00:08:27] Speaker 05: sports drinks and concentrates and syrups. [00:08:29] Speaker 05: So the board was really looking at the question of, is zero generic for the genus of goods that includes soft drinks, energy drinks, and sports drinks? [00:08:40] Speaker 05: And of course, included in that is the subcategory of goods within that genus, which would be zero calorie beverages. [00:08:47] Speaker 05: And it's the same question that was at issue in the Inri Cordua restaurants case, where restaurants don't have to serve churrascos. [00:08:55] Speaker 05: It ended up that the applicants' restaurants did serve Tarascos and I think called it a signature dish. [00:09:02] Speaker 05: But in the same way, even if zero isn't generic for the broad category of soft drinks, if it's generic for a subcategory within that here, the zero calorie soft drinks, then it would be generic for the whole genus and prevent the Coca-Cola company from claiming exclusive rights in that particular area. [00:09:19] Speaker 04: What about the argument on the other side that even some soft drinks use zero when they don't really mean [00:09:24] Speaker 04: zero calories, they might mean zero something else, like carbohydrates or whatever. [00:09:30] Speaker 05: Well, I think that that argument is a little bit overplayed by the other side because all of the soft drinks they offered under the zero name, excluding I think perhaps one, which may no longer be sold, did in fact have zero calories or at least listed zero calories on the label. [00:09:46] Speaker 05: And there's a certain federal drug regulation that as long as it has fewer than five calories [00:09:52] Speaker 05: per serving, you can put zero on the label. [00:09:55] Speaker 05: So the question is, what do the consumers perceive the calorie content of the beverage to be? [00:10:00] Speaker 05: Even if it may have one or two calories, what they perceive it to be and what the law allows the manufacturers to say is that the beverage, in fact, has zero calories. [00:10:09] Speaker 05: But that also raises a question that I think that was discussed in the Henry Cordua restaurants case, which is if the specification of goods in the Churrascos application had excluded [00:10:21] Speaker 05: meat, for example, restaurant services excluding the service of Tarasco's meat, then would Tarasco's be generic for that specification of goods? [00:10:30] Speaker 05: And I believe the court's decision in that case said that in that case, the term Tarasco's might not be generic for that particular specification of goods. [00:10:39] Speaker 05: In this case, we don't have that issue. [00:10:40] Speaker 05: The specification of goods is broad. [00:10:43] Speaker 05: it would include zero calorie beverages in addition to other calorie beverages. [00:10:47] Speaker 05: And so that argument, I don't think, would change the decision. [00:10:50] Speaker 00: So on the genericness question, you all had the burden, right? [00:10:54] Speaker 00: And why could the board not find that your evidence just wasn't strong enough to show by a preponderance that zero [00:11:11] Speaker 00: was understood by consumers to refer to zero calorie products. [00:11:17] Speaker 00: Just, you know, it wasn't as strong as the board imagined it could be, in particular, focusing on the absence of a consumer survey on your side, which doesn't mean that, so it's just kind of a failure of proof and no more. [00:11:37] Speaker 05: Well, I think there's two issues on that. [00:11:39] Speaker 05: One, I think that the [00:11:41] Speaker 05: The failure of proofs that they said we had followed from holding us to the incorrect standard, right? [00:11:47] Speaker 05: They said that you have to prove that zero is the name of a category. [00:11:51] Speaker 05: And then they looked at the evidence and said, well, hardly any of this evidence shows that people use zero as the name of a category. [00:11:57] Speaker 05: But again, that's the incorrect standard. [00:11:59] Speaker 05: The correct standard is whether it refers to a genus. [00:12:02] Speaker 00: And there was plenty of evidence in the record. [00:12:04] Speaker 00: Where were the board's uses of the name [00:12:08] Speaker 00: I know, I think it quoted or it stated it once. [00:12:11] Speaker 00: I guess I'm not remembering that it ever made anything of the distinction, which is a real distinction, between name and refer to. [00:12:21] Speaker 05: Sure. [00:12:21] Speaker 05: If you look at pages, I believe 16, 17 of the decision, appendix 16 and 17, and particularly on page 17 at the very bottom of the page, they equate the phrase referred to the genus of goods of service [00:12:39] Speaker 05: to the name of a category. [00:12:41] Speaker 05: And so they're talking about the third-party use of zero in beverage names in addition to Coca-Cola's use. [00:12:49] Speaker 05: And they say that the use is minor compared to the Coca-Cola companies and therefore irrelevant. [00:12:54] Speaker 05: And then they complain that there's nothing to link these third-party uses to show that the public primarily uses or understands the term zero to refer to the genus of goods or services, and again, using the Marvin Ginn language. [00:13:07] Speaker 05: but then saying that is as the name of a category of sports drinks or energy drinks or soft drinks. [00:13:15] Speaker 05: So it's clear that what the board is doing here is they're equating that refer to a genus to mean name of a category and we believe that was incorrect and that led them to disregard or discount a large amount of evidence that the Royal Crown Company had put into the record that shows that consumers do in fact understand zero [00:13:34] Speaker 05: when used on beverages, and in particular, zero calorie beverages, to mean zero calories. [00:13:41] Speaker 04: On page 13, though, they said PCCC's goods fall into the broad category of soft drinks and sports and energy drinks, which encompasses the narrower category of soft drinks containing minimal or no calories. [00:13:55] Speaker 04: So are you saying that's not what they were looking at on page 17 when they talked about what the genus of goods or services is? [00:14:04] Speaker 05: No, no, no. [00:14:05] Speaker 05: That's a completely different point. [00:14:07] Speaker 05: I think that the board looked at the proper genus. [00:14:09] Speaker 05: I think that what they did was they applied the wrong standard of law. [00:14:13] Speaker 05: They considered that the Marvin Ginn standard of refer to a genus means only the name of a category. [00:14:20] Speaker 05: And that was incorrect as a matter of law based on precedence of this court and, as I was saying, also caused them to disregard or discount [00:14:29] Speaker 05: a large amount of evidence that the Royal Crown Company had put in on the issue of genericism showing that consumers do in fact understand zero when used in connection with beverages to specify and to mean zero calories. [00:14:43] Speaker 04: So in response to Judge Toronto's point though, I mean as we said in Princeton Vanguard, the whole point is what the public perceives. [00:14:51] Speaker 04: Do you think that you had enough affirmative evidence in the record to establish that the public does perceive [00:14:59] Speaker 04: items with zero in the title, as it refers to soft drinks to mean zero calorie soft drinks? [00:15:08] Speaker 05: Yes, we certainly do. [00:15:09] Speaker 05: And let me just go through some of that evidence, and including the evidence that the board discounted. [00:15:15] Speaker 05: One was the Coca-Cola Company's own survey that it undertook before launching Coke Zero, which showed that nearly all respondents understood zero in a soft drink name to mean zero calories. [00:15:27] Speaker 05: The Coca-Cola company's own product labels, advertising and press releases that told consumers over and over and over again that the key attribute of their product was zero and that zero in the name referred to that zero calories. [00:15:41] Speaker 05: Dozens of examples of labels and nutritional panels from third party products that show zero [00:15:46] Speaker 05: being used in reference to zero calories, thus conditioning consumers to understand that zero on a beverage refers to zero calories. [00:15:54] Speaker 05: Evidence of 32 soft drinks from companies other than the Coca-Cola company that use zero in the brand name for zero calorie beverages, again, well, one indicating to consumers that zero in a product name means zero calories, and also showing that the industry uses [00:16:13] Speaker 05: zero in a product name and otherwise to indicate a key aspect of beverages. [00:16:18] Speaker 05: And then also there were 69 third-party trademark applications and registrations that also use zero, again showing that the industry uses zero to indicate a key aspect. [00:16:28] Speaker 05: That was evidence that the board disregarded because they didn't think it showed that consumers use zero as the name of a category. [00:16:36] Speaker 00: What was evidence that you just listed about seven or eight categories? [00:16:39] Speaker 00: I don't think the board disregarded all of that. [00:16:42] Speaker 05: Basically, they gave reasons for their opinion why it wasn't relevant to the question of it being a name of a category. [00:16:49] Speaker 05: Some of the evidence they disregarded for other reasons, for example, the canceled and expired registrations that said weren't evidence of anything, that applications were evidence of nothing that they filed. [00:17:01] Speaker 05: But again, I would say on both of those points that the character of the applications and registrations, their status doesn't matter to show what they were being used by for the industry. [00:17:12] Speaker 05: Let's hear from the other side. [00:17:14] Speaker 02: We'll save you some time. [00:17:16] Speaker 02: Thank you. [00:17:22] Speaker 02: Mr. Baber. [00:17:23] Speaker 01: Good morning, Your Honors. [00:17:24] Speaker 01: May it please the Court. [00:17:26] Speaker 01: I'm Bruce Baber, representing the Coca-Cola Company. [00:17:29] Speaker 01: I will respond in just a minute to some of the points Ms. [00:17:31] Speaker 01: Pop Rosenberg just made, but I think it would be helpful to begin with just a few sort of big picture issues that I think help frame the issues before the Court. [00:17:39] Speaker 01: They'll frame the Board's decision. [00:17:41] Speaker 01: and they help frame the evidence that was before the board. [00:17:45] Speaker 01: As your honors know, there are two separate issues on this appeal, genericness or not, acquired distinctiveness, what we sometimes call secondary meaning or not. [00:17:55] Speaker 01: Those issues are related. [00:17:57] Speaker 01: Under this court's case law, they both turn on consumer perception. [00:18:02] Speaker 01: How do consumers understand a term when they see it in the marketplace? [00:18:07] Speaker 01: Under the governing law, [00:18:09] Speaker 01: The burdens on those two issues before the board in a proceeding like this are very different, but both are questions of fact for the board to decide and therefore subject to review by this court under the substantial evidence standard viewing the record as a whole. [00:18:26] Speaker 01: On genericness, the law really is not in dispute. [00:18:29] Speaker 01: This court has said many times in the Marvin Ginn case in Princeton Vanguard, it's a two-step analysis. [00:18:35] Speaker 01: First you decide what's the genus. [00:18:37] Speaker 01: There's no dispute in this case. [00:18:38] Speaker 01: Ms. [00:18:39] Speaker 01: Poprosenberg just confirmed again the genus is soft drinks, sports drinks, and energy drinks. [00:18:45] Speaker 00: I'm sorry, but the genus that this term could refer to is a subset of that. [00:18:51] Speaker 00: Do you agree that that subset is those items with zero calories, zero being the FDA meaning of zero? [00:18:59] Speaker 01: No, Your Honor. [00:19:00] Speaker 01: I would say, frankly, that's a sort of a semantic trick to define it using the term zero. [00:19:04] Speaker 01: I think the board got it right. [00:19:06] Speaker 01: The relevant subcategory, if you will, to look at, to see whether or not zero has become the common descriptive name for it, which is the test under Marvin Gaye and Princeton Vanguard, is you look at products having minimal or no calories. [00:19:19] Speaker 01: That's what they argued, is that it's low-calorie products. [00:19:22] Speaker 01: Do you agree? [00:19:22] Speaker 01: I agree. [00:19:22] Speaker 01: That's the correct inquiry to ask. [00:19:25] Speaker 04: I don't think that's much different than what that's exactly what I meant. [00:19:28] Speaker 01: I apologize, Your Honor. [00:19:30] Speaker 01: It doesn't have to be zero calories, for example. [00:19:33] Speaker 01: It could be low calorie, minimal calories, which is the burden of the board. [00:19:36] Speaker 01: But yes, we're looking at, in effect, candidly, the diet category of drinks. [00:19:41] Speaker 01: That's what they're more generally known as, and I'll come back to diet in a few minutes. [00:19:46] Speaker 00: But under the genericness issue... So your colleague on the other side recited seven or eight classes of evidence which [00:19:57] Speaker 00: point in the direction of the term zero all by itself when used in this soft drink category, I'm going to use soft drink as a short end, is understood by consumers and by those who have a financial interest in speaking clearly to consumers, namely other marketers, to refer to what the thing is, not who is selling it. [00:20:22] Speaker 00: Why was that evidence not [00:20:24] Speaker 00: essentially sufficiently strong that it was reversible for the board to conclude otherwise. [00:20:29] Speaker 01: What the board looked at, Your Honor, and they took the evidence category by category, as RC tendered it, that they're briefed below, they put them all in these different boxes. [00:20:38] Speaker 01: And the board correctly realized, first of all, you start at the high level. [00:20:43] Speaker 01: The board looks at generic initiatives all the time. [00:20:45] Speaker 00: And it's guided by this court, which said... Can you talk about the evidence, not the wonderfully good faith regular processing board? [00:20:53] Speaker 00: I will assume all of that. [00:20:54] Speaker 01: None of those categories of evidence provided any probative evidence as to what consumers thought. [00:21:01] Speaker 01: There was no consumer evidence. [00:21:03] Speaker 01: There was a tiny bit, and the board went through it in tedious detail. [00:21:06] Speaker 00: But what marketers to consumers who have an interest in an accurate understanding by consumers, how they use a term, is in fact evidence of how consumers understand. [00:21:17] Speaker 00: It's not direct evidence, but it is evidence. [00:21:20] Speaker 00: And then there's all these other usages [00:21:23] Speaker 00: that they describe the fact that you all never use zero by itself, but always with a recognizable brand name. [00:21:32] Speaker 00: Why is that evidence not strong enough to compel the conclusion? [00:21:37] Speaker 01: Because, Your Honor, you have to consider all the evidence, right? [00:21:40] Speaker 01: I mentioned earlier, both genericness and secondary meaning are driven by consumer understanding. [00:21:46] Speaker 01: Part of the evidence in this case [00:21:48] Speaker 01: is a consumer survey. [00:21:50] Speaker 00: That was not relied on by the board in the genericness context. [00:21:53] Speaker 01: They did not, Your Honor, you're correct. [00:21:54] Speaker 01: But the board was also aware of the substantial sales by the Coca-Cola Company and the advertising by the Coca-Cola Company, which it then turned to more specifically on secondary meaning. [00:22:05] Speaker 01: But the board was aware of that. [00:22:06] Speaker 01: It saw all the evidence. [00:22:08] Speaker 00: Right, but what do you do with the long line of cases, which is shortly both sound and important, [00:22:15] Speaker 00: that says if you have a term that consumers understand to refer to what the thing is, not who sells it, the first big company can't monopolize it. [00:22:25] Speaker 00: Even though the answer to the survey question, and I'm now importing this, do you associate it with the company, would be of course, yes. [00:22:35] Speaker 00: That still wouldn't in fact tell you that they understand it to refer to who is selling it rather than what it is. [00:22:43] Speaker 01: Absolutely, Your Honor, and that's more directly relevant to secondary meaning. [00:22:48] Speaker 01: But on the first issue, the evidence we want to talk about, first of all, the board did not exclude any of that evidence. [00:22:54] Speaker 01: The board weighed all that evidence and considered it. [00:22:56] Speaker 01: And it said in a series of footnotes and analysis in its opinion why it felt like that evidence was not sufficient to show what consumers understood. [00:23:06] Speaker 04: But there was a little bit of a [00:23:08] Speaker 04: a disconnect in the sense that the board was sort of checking off pieces of this one standing alone isn't good enough and this one standing alone isn't good enough. [00:23:16] Speaker 04: There was never any assessment of saying, but when you put all of it together, we might come up with a different view. [00:23:23] Speaker 01: Well, there was, Your Honor, I think in this respect. [00:23:25] Speaker 01: You know, the board focused very carefully on what it identified as the 17 instances of what really looked, some of them looked more like something like a generic use, right, for a generic use. [00:23:37] Speaker 01: I disagree with Ms. [00:23:38] Speaker 01: Pop Rosenberg that the board somehow got the law wrong. [00:23:41] Speaker 01: I mean, the board said over and over again it was applying the Marvin Ginn standard. [00:23:45] Speaker 01: That means what did consumers understand this to refer to some group of goods? [00:23:52] Speaker 04: Right, but as we said in Princeton Vanguard, you're supposed to be looking at the mark as a whole. [00:23:57] Speaker 04: And in that case, pretzel was disclaimed. [00:24:00] Speaker 04: Here you've got the board basically saying you have to tell us that zero [00:24:05] Speaker 04: in and of itself standing alone without any soft drink name in front of it is generic. [00:24:11] Speaker 04: But I don't think that's the correct standard, is it? [00:24:14] Speaker 01: Your Honor, what RC had the burden of proving is that there was sufficient evidence to show by a preponderance of the evidence that when consumers see a phrase like zero drinks, zero sodas, zero beverages, that they know what that means. [00:24:30] Speaker 01: And they know that that's a group of things. [00:24:32] Speaker 01: It's a class of goods or services. [00:24:35] Speaker 01: You know, that's the first part of the, whether it's Marvin Gan, whether it's Princeton, Vanguard, a generic term is the common descriptive name of a class of goods or services. [00:24:45] Speaker 01: Right? [00:24:45] Speaker 01: And so that's what RC, RC scoured the internet to find any references they could find anywhere to zero drinks or zero sodas that were known. [00:24:58] Speaker 04: But when you put a soft drink bottler's name in front of the zero, [00:25:05] Speaker 04: Then the question is, do you affiliate that with zero calorie soft drinks? [00:25:12] Speaker 04: And as we said in Princeton Vanguard, you can't separate. [00:25:16] Speaker 04: If you want both points in the mark, and you're not going to disclaim either one, you have to take them together. [00:25:22] Speaker 04: So the mere fact that zero might not always talk about soft drinks is a different inquiry than whether zero combined with the soft drink manufacturer's name talks about soft drinks. [00:25:32] Speaker 01: I think the issue, to put that issue in the framework for this case, your honor, the question would be, okay, if someone saw, if someone who had never seen any advertising or any promotion, if they saw a product named Coca-Cola Zero, would they know what that means? [00:25:46] Speaker 01: What does that zero refer to? [00:25:47] Speaker 01: Does it tell them something about the product? [00:25:50] Speaker 01: And I would encourage the court to look at the testimony of Coca-Cola's Russell Baker. [00:25:54] Speaker 01: He testified that when the Coca-Cola company launched these products, part of the problem, frankly, was consumers didn't know what the zero meant. [00:26:01] Speaker 01: They just didn't know. [00:26:02] Speaker 01: We have evidence in the record that RC on its products. [00:26:05] Speaker 04: That wasn't the date in which you're seeking the mark. [00:26:08] Speaker 04: You're seeking the mark now when the use of the word zero is fairly prolific. [00:26:13] Speaker 01: They do. [00:26:14] Speaker 01: And what consumers have come to understand the term to mean, which is what we know from the consumer survey we did, is that when you see a zero on a soda, that's one of those Coca-Cola products. [00:26:25] Speaker 00: I don't think the survey does show that. [00:26:28] Speaker 00: It just says the answer, the only interesting question in that tiny survey is do you associate that with, it seems to me, you know, for more than a decade, several decades, the answer to that question for say photocopiers would be, yes, I do associate photocopiers with Xerox or, you know, instant cameras. [00:26:51] Speaker 00: Yes, I do associate it with Polaroid. [00:26:53] Speaker 00: It seems to me that would tell you almost nothing about whether photocopier is not generic or instant camera is not generic. [00:27:03] Speaker 00: This is all part of this line of cases that says when you have a term that people understand to refer to the thing, the first gigantic user can't monopolize it. [00:27:15] Speaker 01: Don't disagree with that, Your Honor. [00:27:16] Speaker 01: If the evidence shows [00:27:18] Speaker 01: that that's how consumers understand that. [00:27:20] Speaker 00: Right. [00:27:20] Speaker 00: I guess let me just focus on this question. [00:27:22] Speaker 00: It seems to me this question, do you associate, doesn't make the crucial distinction. [00:27:27] Speaker 01: Well, do you associate? [00:27:28] Speaker 01: Then don't get me wrong, Your Honor. [00:27:29] Speaker 01: That was specifically, there are, in the survey world and trademarks, there are well-known protocols for how to do different types of surveys. [00:27:35] Speaker 00: They may be well-known. [00:27:36] Speaker 00: They may not actually be good for the legal question. [00:27:40] Speaker 01: Well, the point I was going to make, Your Honor, is that what we ran was a secondary meeting [00:27:44] Speaker 01: Clearly, it was called the Palladino survey. [00:27:47] Speaker 01: It is designed to test and to match up with the court's case law that when a term is associated with the products of a single company, that's a showing of acquired resistance. [00:27:56] Speaker 04: But they didn't ask if it was associated with anything else. [00:27:58] Speaker 04: They just said, do you associate it with this, with X? [00:28:01] Speaker 04: They didn't say, would you also associate it with Y? [00:28:04] Speaker 04: Or would you also associate it with Z? [00:28:06] Speaker 01: And the methodology, Your Honor, is you rotate the questions, right? [00:28:09] Speaker 01: And you say, do you associate soft drinks with zero in their name with products of one company? [00:28:14] Speaker 01: or products of many companies. [00:28:15] Speaker 01: That's how you have some people or the people you ask reverse. [00:28:18] Speaker 01: You ask many first and then one to not have order bias. [00:28:22] Speaker 01: And in this case, we got over 50% results of people saying they associated it with products of one company. [00:28:27] Speaker 01: We asked what company and they said the Coca-Cola Sprite, et cetera. [00:28:31] Speaker 01: That's separate and apart. [00:28:32] Speaker 01: That's on secondary meaning. [00:28:34] Speaker 01: What we don't have, and what would go to your honor's question, Judge Taranto, is we don't have a Teflon survey. [00:28:40] Speaker 01: A Teflon survey is one that the proponent of genericness [00:28:44] Speaker 01: generally runs to test whether consumers understand the term to be a generic term. [00:28:50] Speaker 01: Again, there's a methodology for that. [00:28:52] Speaker 01: You put people and you give them a questionnaire and you say, I'm going to explain to you the difference between a generic term and a brand name. [00:28:58] Speaker 01: Let me give you some examples. [00:28:59] Speaker 01: Do you understand? [00:29:01] Speaker 01: Yes, I do. [00:29:01] Speaker 01: You ask a test question to be sure they get it right. [00:29:04] Speaker 01: And then you would ask, do you understand zero or zero drinks to be a generic term for soft drinks having so-and-so calories? [00:29:13] Speaker 01: Or do you understand it to be? [00:29:15] Speaker 00: So for purposes of deciding genericness, we can and presumably should do what the board did, which is ignore your assignments and survey. [00:29:24] Speaker 01: You don't need to get to the assignments and survey to rule correctly on genericness, Your Honor. [00:29:27] Speaker 04: Well, we can't because it wasn't a genericness survey. [00:29:29] Speaker 01: Well, you could, though. [00:29:30] Speaker 01: I mean, if this board were to do a de novo review of all the evidence, which is not the task. [00:29:35] Speaker 01: Obviously, it's a substantial evidence test. [00:29:37] Speaker 01: But there's a lot of it. [00:29:39] Speaker 01: If you read Professor McCarthy's treatise, for example, [00:29:41] Speaker 01: He would tell you, and I think it makes intuitive sense, if you're trying to decide, does the evidence persuade me that what this term means to consumers is a common descriptive term of a category? [00:29:52] Speaker 01: Well, if I have evidence over here that shows more than 50% of people think it comes from only one source, [00:29:58] Speaker 01: That weighs against genericness. [00:30:00] Speaker 00: I'm sorry. [00:30:00] Speaker 00: The evidence says that maybe more than 50% associated with that. [00:30:05] Speaker 00: That doesn't seem to me to tell you that more than 50% think that it comes from that source. [00:30:12] Speaker 00: The question of association is incredibly loose. [00:30:17] Speaker 00: And don't tell me everybody does it. [00:30:19] Speaker 00: That's I'm trying to understand why, if maybe everybody's doing the wrong thing. [00:30:24] Speaker 01: No, well, the secondary meaning, of course, if you can back up, [00:30:26] Speaker 01: The survey, yes, we did a standard secondary meaning survey, but we also had evidence, frankly, that the traditional ways of proving secondary meaning, right, which is advertising, marketing spend, advertising the products together to show that, you know, all these products have zero with the name, they all come from us. [00:30:45] Speaker 01: Those are traditional ways, and we had that in spades, obviously. [00:30:49] Speaker 01: We're a large company. [00:30:50] Speaker 01: We had tremendous sales numbers. [00:30:52] Speaker 01: You have them in the record. [00:30:53] Speaker 01: We had tremendous advertising expenditures, and that was just by us. [00:30:57] Speaker 01: That wasn't even by our modelers or their customers who actually advertised at the grocery store level. [00:31:01] Speaker 01: So you have massive amounts of advertising, right? [00:31:04] Speaker 01: And the courts have recognized since time immemorial that a strong showing of secondary meaning is one that shows significant sales and significant advertising and promotion. [00:31:14] Speaker 04: There's no doubt you can get a mark on Code Zero if you ever intend to keep making it, which we understand you don't. [00:31:22] Speaker 04: At least my law clerks say you don't. [00:31:26] Speaker 04: There's no doubt you can get a mark on Coke Zero. [00:31:30] Speaker 04: The question is whether you can bar others from using the term zero. [00:31:35] Speaker 01: That's not an issue on these proceedings, Your Honor. [00:31:37] Speaker 01: Coca-Cola Company has never attempted to bar anyone from using zero, especially in any descriptive way. [00:31:44] Speaker 04: Are you saying those [00:31:46] Speaker 04: that your friend on the other side was wrong when she said there were cease and desist letters? [00:31:50] Speaker 01: No, Your Honor. [00:31:50] Speaker 01: There was one letter that was sent years ago to a product I don't believe is sold anymore. [00:31:55] Speaker 01: But the record is replete. [00:31:58] Speaker 01: This actually came up before the board. [00:31:59] Speaker 01: There are all these uses that are out there, many of the ones they point to. [00:32:02] Speaker 04: Well, if you don't know, why don't you just disclaim zero and that it wouldn't even be much of an issue at all? [00:32:07] Speaker 01: Because, Your Honor, we are entitled to a registration without zero. [00:32:10] Speaker 01: If they didn't prove genericness, [00:32:13] Speaker 01: What they chose not to put in a survey, we don't know whether they ran one and it didn't work, or they just chose not to do it. [00:32:18] Speaker 01: They didn't carry their burden on genericness. [00:32:20] Speaker 01: We believe we did carry our burden on acquired distinctiveness. [00:32:23] Speaker 01: And with those two outcomes, we are entitled to registration without discrimination. [00:32:27] Speaker 04: What if we disagree on genericness? [00:32:29] Speaker 04: And where do you stand on acquired distinctiveness? [00:32:33] Speaker 01: Well, it depends on what you do, Your Honor. [00:32:34] Speaker 01: If you disagree on genericness and you send it back to the board for some further analysis of some kind, [00:32:41] Speaker 01: Then I guess you decide whether you just want to wait and make a ruling on acquired distinctiveness later or not. [00:32:45] Speaker 04: But until there's a final... But there would have to be a reweighing of acquired distinctiveness if we concluded that the mark was generic. [00:32:55] Speaker 01: If you concluded, Your Honor, that the mark was generic, if you made, you didn't remand it for re-determination, you just decided it was generic based on the thin evidence they presented, then it's game over. [00:33:06] Speaker 01: Okay? [00:33:06] Speaker 01: If you say it's generic, then there can be no acquired distinctiveness. [00:33:10] Speaker 01: That's absolutely the case. [00:33:11] Speaker 01: That's always been the law. [00:33:12] Speaker 01: So that's why I think it's important, as Judge Newman suggested in her concurrence in the case just... Louisiana Fisherman. [00:33:21] Speaker 01: Louisiana Fisherman. [00:33:22] Speaker 01: Exactly, Your Honor. [00:33:23] Speaker 01: You do have to look at genericness first. [00:33:26] Speaker 01: You look at all these other cases that the court's familiar with. [00:33:29] Speaker 01: You've had dictionary definitions. [00:33:30] Speaker 01: You've had articles, New York Times, Los Angeles Times, trade journals, using all these terms as generic terms when things have been held generic. [00:33:38] Speaker 01: That's exactly what we don't have here. [00:33:40] Speaker 01: We don't have any dictionary definitions of zero drinks, zero beverages. [00:33:44] Speaker 01: I ask the witnesses from both our side and their side, have you ever seen any industry publication even in the soft drink business that had a category or referred to a group of zero drinks? [00:33:54] Speaker 01: No, never seen it. [00:33:55] Speaker 01: They're just part of diet. [00:33:57] Speaker 00: Can I pick up on a question Judge O'Malley asked a while ago and I'm interested in your view. [00:34:05] Speaker 00: I took her to be suggesting that [00:34:09] Speaker 00: the question of genericness of zero should be asked and answered about understanding when consumers see it, not all by itself, but when they see it as part of a set of words, a combination which has an immediately recognized brand name in front of it. [00:34:34] Speaker 00: I wasn't quite sure what your position was. [00:34:36] Speaker 00: At least once you said what they had to come in and show was that when people saw zero all by itself, they knew what it meant. [00:34:45] Speaker 00: And at least the question that I was understanding being asked was maybe that's really not the right question, but how do they understand zero when they see Coke zero, Fanta zero, Sprite zero? [00:34:58] Speaker 00: I think you're right, Your Honor. [00:34:59] Speaker 01: And let me answer it two ways, right? [00:35:01] Speaker 01: For purposes of the genericness determination, [00:35:03] Speaker 01: There has to be some identification of what you think the thing is the common descriptive name for. [00:35:09] Speaker 01: So in that sense, like any other adjective that somebody argues about, whether it's generic or not, footlong, brick oven, kettle for chips, light for beer. [00:35:20] Speaker 01: Light for beer is a great example. [00:35:21] Speaker 01: You have to put it in context. [00:35:22] Speaker 01: You have to give it a noun. [00:35:24] Speaker 01: And we don't dispute. [00:35:24] Speaker 01: Clearly, adjectives can be generic terms like light and like footlong. [00:35:28] Speaker 01: So you ask the genericness inquiry that way. [00:35:31] Speaker 01: And as part of the proof, you'll get the proof. [00:35:34] Speaker 04: Which way? [00:35:34] Speaker 04: With the other word attached to it? [00:35:36] Speaker 01: No, with an app. [00:35:37] Speaker 01: Yes, with light. [00:35:37] Speaker 01: I'm sorry. [00:35:38] Speaker 01: I said light. [00:35:39] Speaker 01: Zero. [00:35:40] Speaker 01: You have to give it an app. [00:35:40] Speaker 01: Zero drinks, zero beverages, zero soft drinks. [00:35:43] Speaker 00: No, no, no. [00:35:45] Speaker 00: I understood the question to be, do you ask it in the context when it's Sprite zero, Coke zero, Fanta zero? [00:35:53] Speaker 01: And that's exactly the question. [00:35:54] Speaker 01: Because obviously zero, just zero in the abstract, [00:35:57] Speaker 01: You can't do any analysis. [00:35:59] Speaker 01: If it's a dictionary word, it means nothing in some category. [00:36:02] Speaker 00: Zero when combined with a self-evidently undisputed brand word, not another common descriptor like beverage. [00:36:09] Speaker 01: For a soft drink. [00:36:09] Speaker 01: That's what puts it in context for this case, which is when a consumer sees Sprite Zero, do they say to themselves, oh, that's part of the diet category. [00:36:21] Speaker 01: That's really a diet drink. [00:36:23] Speaker 01: Or do they say to themselves, oh, Sprite Zero. [00:36:25] Speaker 01: Coke is the one that makes all those zero products. [00:36:27] Speaker 01: You know, I know Fanta Zero, I know Coke Zero. [00:36:31] Speaker 01: This comes from the same source. [00:36:33] Speaker 01: That's the question. [00:36:35] Speaker 01: OK? [00:36:35] Speaker 01: And the question is, did they prove the former by a preponderance of the evidence with no direct evidence and no survey where they had the burden? [00:36:44] Speaker 01: And did we prove the latter where we did have a survey and we had lots of evidence? [00:36:48] Speaker 00: So let me kind of ask the question in terms of the copier example. [00:36:53] Speaker 00: And I will assume more from memory of youth [00:36:57] Speaker 00: that there was a long period when Xerox owned the copier world. [00:37:03] Speaker 00: Everybody would have answered the question, I see a copier, where does it, or see the term copier, where does it come from? [00:37:11] Speaker 00: They would have said Xerox, right? [00:37:12] Speaker 00: And Xerox fought like crazy to make sure that its name didn't become generic. [00:37:17] Speaker 00: Anyway, why is what you just said, would that not have been equally applicable there so that it [00:37:27] Speaker 00: I guess I begin to doubt whether that's quite the right question, whether everybody would understood that's where it must come from. [00:37:34] Speaker 01: To answer that question, Your Honor, you have to see exactly what the evidence was in that photocopier case. [00:37:38] Speaker 01: Here, the consumers were asked, and the beauty of our survey in some respects is, of course, they've argued for a long time, well, zero is just a new diet. [00:37:45] Speaker 01: It's the equivalent of diet. [00:37:47] Speaker 01: Well, that's exactly what we tested. [00:37:49] Speaker 01: We asked consumers, do you believe that products with zero in their name come from one source or more than one source? [00:37:55] Speaker 01: They said one. [00:37:56] Speaker 01: But when we asked about diet, not over 90% of people correctly recognized, oh no, diet products come from all kinds of places, all different people. [00:38:05] Speaker 01: Well, it was 92% of the respondents said diet, it is a generic. [00:38:10] Speaker 01: Well, clearly it has no secondary meaning for anybody. [00:38:12] Speaker 01: It wasn't testing genericness, but it clearly was not a term that people thought came from one source. [00:38:17] Speaker 01: And zero, our survey showed, clearly was a term that the majority of people thought came from one source. [00:38:24] Speaker 01: And just an issue that I know has gotten a little bit of airplay in the briefs, but on secondary meaning, for example, there is no requirement. [00:38:30] Speaker 01: It has to be over 50%. [00:38:31] Speaker 01: I know RC quibbles with some of the data from the survey. [00:38:34] Speaker 01: But it's long been the law. [00:38:35] Speaker 01: The secondary meaning survey that shows association in the 30s and 40% range, going all the way back, I think, to the Owens Corning fiberglass, pink fiberglass case, the surveys showed 41% and 50%. [00:38:46] Speaker 01: That was good enough for this court. [00:38:48] Speaker 01: So when you get over 50% in a survey of secondary meaning, [00:38:52] Speaker 01: The courts, the commentators, Professor McCarthy have always said that is clearly sufficient to show acquired distinctiveness, especially when that's on top of very substantial sales and very substantial advertising. [00:39:04] Speaker 01: So I think the board, the result in this case, the board was extremely careful. [00:39:07] Speaker 01: The board wedded itself to the Princeton Vanguard decision in terms of how to analyze the issues. [00:39:13] Speaker 01: The board went through the evidence category by category and explained why it felt that RC did not carry its burden. [00:39:21] Speaker 01: It chose not to do a survey. [00:39:23] Speaker 01: That's the preferred method of proving genericness, as was reaffirmed in Princeton Vanguard. [00:39:27] Speaker 01: They just didn't do it. [00:39:28] Speaker 01: And they're the third biggest soft drink company in America. [00:39:30] Speaker 01: So you have to ask why. [00:39:32] Speaker 01: But the board saw the evidence. [00:39:34] Speaker 01: They said RC fell short in proving that it was a generic term. [00:39:38] Speaker 01: But Coca-Cola carried its burden of showing that it had acquired secondary meaning. [00:39:43] Speaker 01: And based on those two, I think there's clearly substantial evidence to support both of those conclusions. [00:39:49] Speaker 01: The board didn't get the law wrong. [00:39:50] Speaker 01: The board got the law right. [00:39:52] Speaker 01: And under the substantial evidence, Senator, review, we ask the court to affirm. [00:39:58] Speaker 02: Thank you, Mr. Baber. [00:40:00] Speaker 02: Ms. [00:40:00] Speaker 02: Rosenberg, you have a few minutes for rebuttal. [00:40:05] Speaker 02: Thank you. [00:40:06] Speaker 05: I want to address a couple of points that Mr. Baber made. [00:40:10] Speaker 05: First, with regard to the survey, I know he criticized us for not putting in a survey. [00:40:14] Speaker 05: There's no requirement that we're required to put in a survey. [00:40:17] Speaker 05: Certainly there are amounts of evidence that we think show that zero is generic. [00:40:21] Speaker 05: It's referred to a genus of goods. [00:40:23] Speaker 04: But you can't disagree that we have said repeatedly that it's the preferred approach. [00:40:30] Speaker 05: No, I don't disagree. [00:40:31] Speaker 05: You have said that. [00:40:32] Speaker 05: You've also never said that it's a requirement. [00:40:35] Speaker 05: But the survey didn't go on to genericness, right? [00:40:37] Speaker 05: It dealt with acquired distinctiveness. [00:40:39] Speaker 05: And then Mr. Baver said that we quibble with some of the results. [00:40:42] Speaker 05: I think the evidence shows that the results are much lower than the 51% or 55% they claim. [00:40:50] Speaker 05: And there's other issues with the survey as well. [00:40:53] Speaker 05: One is that it was undertaken in 2008. [00:40:54] Speaker 05: The trial was held in 2014, I believe, so six years difference. [00:41:00] Speaker 05: And during that time, there were many zero-name products that went on the market. [00:41:05] Speaker 05: And that goes to the question of, did the Coca-Cola company truly prove acquired distinctiveness? [00:41:10] Speaker 05: And we think the board made an error. [00:41:12] Speaker 00: Sorry, just the relevant date as of which they had to have acquired distinctiveness? [00:41:18] Speaker 05: At the time of the trial. [00:41:19] Speaker 00: Time of the trial. [00:41:20] Speaker 05: Right. [00:41:20] Speaker 05: And so at the time of the trial, we think the board weighed the evidence wrong. [00:41:24] Speaker 05: We put in evidence showing that 32 other beverages made by companies other than the Coca-Cola company were on the market. [00:41:31] Speaker 05: The board looked at that and said, oh, their sales are so small and inconsequential that it doesn't matter. [00:41:37] Speaker 05: The Coca-Cola company's use is still substantially exclusive. [00:41:41] Speaker 05: We think that by doing that, they stretch substantially exclusive use to beyond any permissible bounds. [00:41:47] Speaker 05: And I'd say in that respect that the sales of these third-party beverages were not inconsequential. [00:41:52] Speaker 05: Our own Diet Right Zero product, which was put on the market a few weeks after the Coke Zero product, so it's been on the market since 2004, [00:41:59] Speaker 05: Testimony showed that it was distributed in 25,000 retail outlets across the United States in the five-year period leading up to the trial. [00:42:07] Speaker 05: It sold the equivalent of 1.8 billion 12-ounce cans of product. [00:42:11] Speaker 05: That is not an inconsequential product. [00:42:14] Speaker 05: Add to that 31 other products, including products from industry leaders such as PepsiCo. [00:42:22] Speaker 00: But that's not... It's a drop in the bucket, isn't it? [00:42:25] Speaker 00: And why wouldn't the inquiry be, as an evidentiary matter, a comparative one, that if, I don't know, 98% of all of the uses of this were theirs, that actually matters for genericness? [00:42:43] Speaker 05: Well, I think that there's... [00:42:45] Speaker 05: Well, first of all, we're talking about acquired distinctiveness and not on genericness. [00:42:49] Speaker 00: On acquired distinctiveness, I thought that virtually the only thing on genericness that the board said weighed on the other side was the staggering volume of their sales. [00:43:04] Speaker 05: That's true. [00:43:04] Speaker 05: And I think that was incorrect. [00:43:06] Speaker 05: We cited, I think, 18 cases, including seven from this court saying that on genericness, acquired distinctiveness cannot save a generic mark. [00:43:14] Speaker 05: So we think on the genericness question that the board was incorrect to weigh any acquired distinctiveness evidence. [00:43:21] Speaker 05: And then on the acquired distinctiveness side, on the descriptive side, we think how the board weighed the evidence was wrong. [00:43:27] Speaker 05: Because as the court said in juice generation, the evidence of so many third parties out there is powerful on its face. [00:43:34] Speaker 05: And beyond that, we also put in evidence of our own sales, of PepsiCo's sales, again, totally in the hundreds of millions of dollars of product for a product sold nationwide. [00:43:43] Speaker 05: and for several other companies as well. [00:43:45] Speaker 00: Is that the Propel Zero? [00:43:46] Speaker 05: Yes, Propel Zero. [00:43:48] Speaker 05: So we think that the board also erred in weighing the evidence on acquired distinctiveness to show that the Coca-Cola company had zero distinctive. [00:43:57] Speaker 05: And I would also say that the other error on the court's weighing of acquired distinctiveness had to do with the fact that what it focused on was the evidence of the mark being used as a whole. [00:44:08] Speaker 05: The sales information were all for Coke Zero, Sprite Zero. [00:44:11] Speaker 05: advertising information for the whole marks, press mentions for the whole marks. [00:44:15] Speaker 05: As Judge Tarantino noted before, there's no evidence that Coke has ever used zero standing alone. [00:44:20] Speaker 05: And in the Louisiana Fishfy Products case, this court said that evidence for the entire mark may not be sufficient to show acquired distinctiveness in a particular term. [00:44:31] Speaker 05: And we think that's particularly true in this case when there were 32 other beverages on the market that also had zero in the name. [00:44:38] Speaker 05: And thank you for your time today. [00:44:40] Speaker 02: Okay, thank you. [00:44:42] Speaker 02: Thank you both. [00:44:43] Speaker 02: The case is taken under submission.