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Judgment: Coca Cola v Frucor. Pepsi

[Full judgment: CokevPepsi.pdf]

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2010-404-6703
[2013] NZHC 3282


UNDER the the Trade Marks Act 2002 and
the Fair Trading Act 1986


IN THE MATTER OF (i) Trade Mark Infringement
(ii) Passing Off
(iii) Breach of the Fair Trading Act 1986

BETWEEN THE COCA-COLA COMPANY
Plaintiff

AND FRUCOR SOFT DRINKS LIMITED
First Defendant
PEPSICO INC
Second Defendant

A. Introduction

[1] In 2009, the defendants, Frucor Soft Drinks Limited (“Frucor”) and PepsiCo Inc (“PepsiCo”), started selling cola and lemonade soft drinks in this country in a new 300 ml glass bottle. The plaintiff, The Coca-Cola Company (“TCCC”) alleges that the defendants have used and intend to continue using the new bottle shape and the silhouette of its shape as a sign and that this sign infringes three registered trade marks it holds in this country. TCCC says that these trade marks protect what it describes as its “contour bottle”.

[2] The defendants say that their sign comprises a combination of one or other of PepsiCo’s Pepsi, Pepsi Max and 7UP trade marks, together with its glass bottle (which it refers to as the “Carolina bottle”), which they point out incorporates a horizontal embossed wave pattern. They deny that the shape or silhouette of the Carolina bottle has been, or is likely to be, taken as use of a trade mark. They say that each of their combination signs is used as a trade mark to denote and distinguish their cola and 7UP products from TCCC’s products in this country.
[3] In relation to the cause of action alleging infringement of trade mark, the key issues can be broadly summarised as follows:

(a) What sign or signs are the defendants using?;
(b) Have the signs been used as trade marks?;
(c) Are the defendants’ signs similar to any of TCCC’s three registered trade marks?;
(d) Are the defendants’ signs likely to deceive or confuse?

[4] TCCC also alleges that the defendants’ products being sold in the Carolina bottle are being passed off as products, or products associated with it, and further, that the defendants’ products breach the Fair Trading Act 1986 because they mislead or deceive customers into believing that they are its products, or products associated with it.


[5] The defendants deny both passing off and breach of the Fair Trading Act. They say that there are significant differences between the contour bottle and the Carolina bottle, and that in every case, their bottle features one or more of their word and device marks, Pepsi, Pepsi Max or 7UP. They say that they have clearly and adequately labelled their product, that the labelling differentiates their product from TCCC’s product, and that there is no likelihood of confusion or deception.

[...]


[227] Accordingly, I find there has been no breach of either s 9, s 10, or s 13(a), (e) or (f) of the Fair Trading Act.

I. Costs

[228] TCCC has failed in this proceeding. The defendants are entitled to their reasonable costs and disbursements.

[...]

[Full judgment: CokevPepsi.pdf]

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