The real thing? Coke sues Pepsi over bottle shape mark

Thanks once again to the invaluable ipwars blog for bringing our attention to Coca Cola's recent lawsuit down under against Pepsico over use of a bottle with a flared base. Here's a link to the ipwars article and here is the press story it references. The picture is borrowed with thanks from MIP's fine article "How Coca Cola protects its IP in Asia", according to which they have protection in many Asian countries. Will there be worldwide litigation? The Coke bottle has long been the paradigm case for 3D marks, so this might be an ideal test case.

Those with long memories will recall that Coke's attempt to register the bottle as a UK trade mark under the 1938 Act failed (In Re Coca Cola Co. [1986] 1 WLR 693, [1986] RPC 421 (HL) - link to decision here). It had originally been registered as a design, but that expired (in the UK) in 1940, and the House of Lords clearly had public policy concerns about allowing an eternal post-expiry "monopoly" as a trade mark. (The "original" design, according to Wikipedia, was registered as US Design Patent D 48,160).

However, following the demise of the 1938 Act it is now comfortably registered as CTM 2754067. Japan's IP High Court also recently allowed the registration as a 3D mark there.