Is “Coke” a Generic Mark?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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10 Responses

  1. Aaron says:

    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

  2. mahtso says:

    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.

  3. Vladimir says:

    Maybe we could tax soda enough to … make this problem go away?

  4. Greg says:

    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.”

  5. Howard Wasserman says:

    I wonder if this explains the old John Belushi/Billy Goat Tavern “No Coke, Pepsi” skit–the “Coke guys” made them do it.

  6. Steve M. says:

    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.

  7. Bruce Boyden says:

    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.

  8. Deven says:

    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.

  9. Deven says:

    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

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