Is “Coke” a Generic Mark?
posted by Gerard Magliocca
Here’s an issue that bugs me every time I teach genericism in trademark law. As you may know, if a brand name becomes the word of choice to describe the actual product (e.g., aspirin or thermos) then the trademark rights lapse because allowing one firm to hold a monopoly over such a word would put competitors at a huge disadvantage.
I wonder why “Coke,” which is a registered trademark of Coca-Cola, has never been challenged on this basis. Many people use “Coke” to mean “cola,” even though there are other kinds of cola (e.g. Pepsi and R.C.). Indeed, in some parts of the country “Coke” is commonly used to mean “soda.” And how often do you find yourself at a restaurant asking for a “Coke,” being asked “Is Pepsi OK?” and answering “Fine, I don’t care.” This would suggest that people think of “Coke” and “cola” as interchangeable
Now obviously there are people who do express a strong preference for Coke and swear up and down that it’s better than other kinds of cola. The question is how many people are in this camp and is that enough to justify giving “Coke” trademark protection. Anyone know of any empirical data on this?
September 29, 2009 at 10:15 am
Posted in: Intellectual Property
Print This Post
Responses (9)
Aaron - September 29, 2009 at 11:09 am
I think there are two separate concerns here, one that has implications for genericide and one that doesn’t. The fact that a waiter or waitress asks if Pepsi is okay when you ask for a Coke seems more likely to reflect the recognition that those two products fall within the same general category. If you ordered a Coke and were simply brought a Pepsi without another word, that might suggest the term Coke is equivalent to “cola.” But that’s not what usually happens.
The Southern phenomenon of treating Coke as a category of non-alcoholic carbonated beverages is more troubling for the Coke mark. I’ve had the experience of ordering a Coke in the South and being asked “What kind of Coke do you want? We’ve got 7-Up, Root Beer, and orange.” As this map shows, that’s largely a regional thing and likely not prevalent enough to risk genericide at this point. http://strangemaps.files.wordpress.com/2008/08/popvssodamap.gif
mahtso - September 29, 2009 at 11:54 am
I seem to recall (or I am imagining) that the reason you are asked if Pepsi is all right, is that Coke was out enforcing its trademark (by notifying or reporting those who gave another drink when a coke was ordered) to help ensure that it did not go generic.
I heard a comedian say he liked to have fun at the waiter’s expense by responding “yes, a coke” when asked if Pepsi was ok.
Vladimir - September 29, 2009 at 12:52 pm
Maybe we could tax soda enough to … make this problem go away?
Greg - September 29, 2009 at 1:07 pm
Back in the 70′s and 80′s Coca-Cola used to send representatives out to restaurants and ask for a “Coke.” My father owned a few restaurants in Illinois, and he served R.C. exclusively in all the restaurants. So, when the agents came in and asked for a Coke, the waitress brought them all R.C. without mentioning the difference. The agents then asked to speak to the manager (that’d be Dad), and they sat down and talked with him about how when someone asks for a Coke, that if you don’t have that specific brand, you have to ask if “Will a R.C. be okay?” He’s 71 now, retired from the restaurant business for a long time, but still talks about those “Coke guys” came in and gave him quite a scare. He always made sure his staff followed Coke’s rules from then on. I guess they must have been pretty persuasive when they gave him “the talk.”
Howard Wasserman - September 29, 2009 at 1:15 pm
I wonder if this explains the old John Belushi/Billy Goat Tavern “No Coke, Pepsi” skit–the “Coke guys” made them do it.
Steve M. - September 29, 2009 at 1:37 pm
There almost certainly are good empirical data on the prevalence of indifference to Coke, Pepsi, and the like, but the data are also almost certainly in the possession of the Coca-Cola and Pepsi corporations, which have no incentive to let us know.
Bruce Boyden - September 29, 2009 at 1:54 pm
I’m of no help on the empirical data question. But I’m curious about something else — when the last time genericide actually happened? The typical examples (aspirin, escalator) are all from the early 20th century.
Deven - September 30, 2009 at 8:37 am
You may be interested in the article Confronting the Genericism Conundrum that Sandra Rierson and I wrote (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=934620). As for Bruce’s question, the problem may be that the fear of the possibility is driving poor behaviors, at least that is part of what Sandy and I argue. In addition, we note that some of the early cases really turned on patent problems.
Nonetheless, Coke, Pepsi, Kleenex, and Xerox, enforce marks based in part on claims that failure will lead to killing the mark.
Deven - September 30, 2009 at 8:38 am
Steve M.
Any idea where hints of the data to which you refer is noted or available? It would be great to dig into it. Thanks much, Deven
Leave a Reply