|Coke Loses its Bottle over a Pinched Waistline|
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Coca-Cola has opened a new front in the long-running cola wars with Pepsi, but this time it's not about which brand is the real thing or the choice of a new generation.
It's not about taste tests, advertising blitzes or marketing stunts.
This battle is about the humble yet shapely containers soft drink giants use to persuade thirsty customers to pick their particular fizzy sugared water from the drinks fridge.
Coke says only it has the right to pinch in the waist of its cola bottles, forming what it calls the ''contour bottle'', and claims Pepsi, the No.2 brand, has stolen the idea.
In a lawsuit filed in the Federal Court recently, the Coca-Cola Company says Pepsi has been selling its beverage in knock-off containers for at least five months, and refuses to stop.
All the allegedly infringing bottles should be handed over to Coca-Cola for destruction, together with supporting ''stationery, signage and promotional material'', Coke said in court papers.
Coca-Cola is also seeking cash damages, although it has yet to say how much, and an injunction stopping Pepsi using the bottles.
Coca-Cola said in its statement of claim that it had been using the contour bottle's ''distinctive shape and silhouette'' since 1916 in the US and since at least 1938 in Australia.
Images of the bottle adorn a dizzying array of merchandise ''including clothing, bags, bottle openers, drinking mugs, fridge magnets and key chains'', it said.
The company alleged Pepsico Inc, its local subsidiary, Pepsico Australia Holdings, and its licensee, Schweppes Australia, have been selling Pepsi in infringing bottles since at least May 4, when they were on sale at an Elizabeth Street 7-Eleven.
Comment could not be obtained from Pepsico or Schweppes, which have yet to file a defence.
Matthew Hall, intellectual property partner at the law firm Swaab and a trademark attorney, said even if Coke won it would find it difficult to put a dollar figure on its losses.
''Pepsi would argue that a bottle branded as Pepsi would not be mistaken for Coke, notwithstanding the similarity in shape,'' he said. ''They would say the profit they have made is a result of it being a Pepsi drink, rather than a Coke bottle.''
He said the main sting in Coca-Cola's claim was its attempt to force its main rival to spend a large amount of money taking Pepsi off the shelves and putting it in new bottles.
''If they ask for damages I would have thought it's not going to be much,'' he said.
A Coca-Cola spokeswoman said the company did not comment on legal matters until they were resolved, but the company's intellectual property was ''our most valuable asset and we take appropriate steps and actions to protect it where necessary''.
The opinions expressed do not constitute investment advice and specialist advice should be sought about your specific circumstances.
Published on our website on Nov.8, 2010