Frucor, owned by the Japanese beverage and food company Suntory Group, has won an intellectual property battle with beverage giant Coca Cola in New Zealand over the design of one of its bottles.
Frucor, which bottles and distributes Pepsi in NZ, was taken to court by Coke on the grounds that the design of it 300ml Carolina bottle was too similar to that of Coke’s, and may cause confusion amongst consumers -potentially mislead them into thinking they were purchasing Coca Cola, stuff.co.nz reports.
However the High Court of Auckland ruled yesterday that the bottle was unlikely to deceive or mislead, with Judge Edwin Wylie stating that there was no evidence of confusion between the two products in the four years that both products have been available for sale next to each other.
Judge Wylie questioned why the Coca Cola company had taken almost a year to launch a complaint and also why proceedings were only being issued in Australia, New Zealand and Germany considering the bottle in question has been available for sale in many other countries since 2005.
Another point that Judge Wylie noted was that the Frucor bottle had actually won a design award in the UK which attracted no complaints from Coca-Cola.
The only similarity that the court noted between the two bottles was that they both featured a waist, however when the two bottles were compared as a whole, “there was no misrepresentation,” and that there was "nothing to support the assertion that sales have been or are likely to be diverted".
"On the [Pepsi] Carolina bottle it is more gentle and the deepest point is higher. On the [Coke] contour bottle it is lower and more abrupt. Moreover, a waist is a shape in common usage in many bottles. There is no other relevant similarity between the registered trade mark and the Carolina bottle," said Wylie.
"[Coke] is in a unique position. One would expect that it would readily have been able to find out whether any retailers anywhere in the country are aware of any instances of confusion arising from the presence in the market of the defendants' Carolina bottle.'