Coca-Cola Co. v. Busch et al.
44 F.Supp. 405 (1942)
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Rule of Law:
A product's common nickname, created and used by the public, is protectable under the doctrine of unfair competition, and a competitor may be enjoined from using a confusingly similar name, particularly when there is intent to trade on the original product's goodwill.
Facts:
- The Coca-Cola Company has for many years manufactured and sold a soft drink syrup and beverage under the registered trademark 'Coca-Cola'.
- A significant portion of the buying public commonly abbreviates the trademark 'Coca-Cola' to 'koke' or 'coke' when ordering or referring to the product.
- John W. Busch planned to manufacture, advertise, and sell a new soft drink beverage.
- Busch chose the name 'Koke-Up' for his new product and applied for a copyright.
- The proposed 'Koke-Up' beverage was to be brown in color, similar to Coca-Cola.
- Busch admitted in conversation that he chose the name 'Koke-Up' to take advantage of the public's association of 'koke' with Coca-Cola and to benefit from Coca-Cola's extensive advertising.
- The Coca-Cola Company has never officially used, advertised, or adopted the word 'koke' as a trademark for its product.
- Soft drinks of this type are typically ordered verbally by consumers.
Procedural Posture:
- The Coca-Cola Company (plaintiff) filed a bill in equity in the U.S. District Court seeking a preliminary and perpetual injunction against John W. Busch (defendant).
- Jurisdiction was based on diversity of citizenship.
- During the hearing for the preliminary injunction, both parties agreed that the court should treat the matter as a final hearing and issue a final ruling.
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Issue:
Does a defendant's planned use of the name 'Koke-Up' for a new soft drink constitute unfair competition against The Coca-Cola Company, where the public widely uses 'koke' as a nickname for 'Coca-Cola', even though the plaintiff never officially used that nickname itself?
Opinions:
Majority - Ganey, District Judge
Yes. A competitor's use of a name that is confusingly similar to a product's well-established public nickname constitutes unfair competition. While this case may not fit a strict trademark infringement claim because the plaintiff never used the nickname 'koke', the broader principles of unfair competition apply. The central issue is the likelihood that the public will be confused or deceived. The evidence overwhelmingly shows that the public uses 'koke' to designate the plaintiff's product and that soft drinks are ordered verbally, making phonetic similarity critical. The defendant's own admissions reveal a clear intent to 'palm off' his product by taking advantage of the reputation and goodwill the plaintiff built for 'Coca-Cola'. Equity will not permit a party to benefit from such deception, and the public-created abbreviation is as deserving of protection as the trademark itself.
Analysis:
This decision significantly broadens the scope of unfair competition by establishing that a nickname created and adopted by the public, rather than the company, can acquire secondary meaning and be legally protected. It moves the focus from the company's own actions (i.e., using a mark) to the public's perception and a competitor's intent to exploit that perception. The ruling puts future market entrants on notice that they must avoid not only a competitor's official trademark but also any widely recognized public abbreviations or nicknames. This is particularly impactful for products with popular, informal names and reinforces the court's role in preventing public confusion and deceptive business practices.
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