Video | Agriculture | Confidence | Economy | Energy | Employment | Finance | Media | Property | RBNZ | Science | SOEs | Tax | Technology | Telecoms | Tourism | Transport | Search

 


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]

© Scoop Media

 
 
 
 
 
Business Headlines | Sci-Tech Headlines

 

Taxing Multinationals: EU Ruling Sours Apple

Shares of Apple slid, down 0.9 percent as of 3.08pm in New York, after the European Commission ruled that Ireland granted the company undue tax benefits of up to 13 billion euros (US$14.5 billion)—"illegal aid” under EU rules that the commission says Ireland now must recover from Apple. More>>

ALSO:

NZX Review: Best Practice Code Recommends Code Of Ethics

NZX, the sharemarket operator, is seeking feedback on proposed changes to its corporate governance best practice code including a published code of ethics, rules about share trading and continuous disclosure, and more transparency over board appointments and chief executive pay. More>>

ALSO:

Auditors:

Signs Of Life? SETI On Russian Space(?) Signal

A star system 94 light-years away is in the spotlight as a possible candidate for intelligent inhabitants, thanks to the discovery of a radio signal by a group of Russian astronomers... Could it be a transmission from a technically proficient society? At this point, we can only consider what is known so far. More>>

Post-Post: Brian Roche To Step Down As NZ Post CEO

Brian Roche will step down as chief executive of New Zealand Post in April 2017, having led the state-owned postal service's drive to adjust to shrinking mail volumes with a combination of cost cuts, asset sales, modernisation and expansion of new businesses. More>>

ALSO:

Company Results: Air NZ Rides The Tourism Boom With Record Full-Year Earnings

Air New Zealand has ridden the tourism boom and staved off increased competition to deliver the best full-year earnings in its 76-year history. More>>

ALSO:

New PGP: Sheep Milk Industry Gets $12.6M Crown Funding

The Sheep - Horizon Three programme aims to develop "a market driven, end-to-end value chain generating annual revenues of between $200 million and $700 million by 2030," according to a joint statement. More>>

ALSO:

Get More From Scoop

 
 
 
 
 
 
 
 
 
Business
Search Scoop  
 
 
Powered by Vodafone
NZ independent news