June 16, 2016


It is summer festival season in Middle Tennessee. Last week, we experienced the CMA Music Festival, followed by Bonnaroo. This coming weekend, the RC Cola and Moon Pie Festival takes place in Bell Buckle, Tennessee. The festival begins with a run in the early morning (to try and avoid the blistering heat). If you're lucky, it ends with a drink of the celebrated beverage.

But what if you want to save your calories for the Moon Pies?

Then you might try a diet drink originally distributed by RC in the late 1950s: DIET RITE. Since approximately 2005, DIET RITE PURE ZERO has been available in a number of flavors:


Since June, 2008, applications to register DIET RITE PURE ZERO and PURE ZERO have been suspended pending disposition of a consolidated opposition proceeding before the Trademark Trial and Appeal Board ("TTAB"). Royal Crown Company, Inc. and Dr Pepper/Seven Up, Inc. (collectively, "RC") opposed registration of 17 applications for marks that include the term "zero" for use with soft drinks, sports drinks, and energy drinks filed by The Coca-Cola Company ("TCCC"), alleging that the term "zero" is generic or descriptive and thus requires a disclaimer. TCCC opposed the two applications filed by RC on the ground of likelihood of confusion.

An example of one of TCCC's products is shown to the right:

Sprite Zero

Last month, the TTAB rendered its decision, finding the term "zero" not generic, but inherently descriptive. However, it also found that TCCC had satisfactorily shown acquired distinctiveness in the term "zero" when used as part of a mark for soft drinks and sports drinks. But not for energy drinks. So the TTAB gave TCCC two months to disclaim "zero" in its subject applications insofar as they pertain to energy drinks. Further, the TTAB dismissed TCCC's likelihood of confusion claims against RC's applications because TCCC failed to establish priority in its asserted family of ZERO marks. The appeal period is pending.

If you want to celebrate RC's partial victory at the RC Cola and Moon Pie Festival this weekend, in100 degree weather, you can run a

10K race, and drink a can of

0 calorie DIET RITE PURE ZERO soft drink

Side Soda