German Court: Pepsi Does Not Infringe Trademark for Coca-Cola’s Contour Bottle

The Coca-Cola “contour” bottle is a classic example of trade dress.  Separate and apart from the name and logo on the label, its overall visual appearance serves to distinguish it from other sodas and identifies the source of the product to consumers, thus giving rise to trade dress rights in that visual appearance.  The boundaries of these rights, however, are not easily defined.

Case in point is a May 31st decision by the Hamburg Regional Court in Germany.   The court held that Coke’s classic “contour” bottle (below left) was not sufficiently similar to PepsiCo’s “Carolina” glass bottle (below right) and PepsiCo thus did not unfairly take advantage of the reputation of Coca-Cola’s trade dress, which was the subject of several EU trademark registrations.  

Central to the ruling was the finding that the contour (or “scalloped”)  form of the Coke bottle was not, standing alone, protectable because it is a general shape used by many manufacturers.  The court then found that the Coke bottle was distinctive because of the vertical grooves on the neck and lower body that are separated by a wide “belt” in the middle.  The Pepsi bottle had neither of these design elements and, in contrast, features wavy, horizontal lines on the lower half without any “belt.” 

The case is LG Hamburg, 315 O 310/11.

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