Cola Wars
It’s the Real Thing…
Who can forget the finale to the epic series Mad Men. Was it just a nod to perhaps the the most famous advertising campaign of all time, that of Coca-Cola teaching the world to sing and live in perfect harmony. And were we to believe the mercurial Don Draper had a hand in its creation elevating himself, once again, to the Archchancellor wizard of advertising. What an ending; carefully grafting reality onto fiction through the prism of an all-in-one hero and villain – our Don. A relic from the past, even dangerous when dormant, like a cold war ‘nuke’. A man with more self-destruct buttons than a Bond villain’s lair.
It must be tough being Coca-Cola, everyone in advertising wants your ‘account’ and so many others just want to have a go at you. Being its intellectual property defence lawyer might be the best gig of the lot providing a flow of ‘steady work’. A couple of recent IP spats exemplify this rather well.
Make it real
There you are ‘casual’ dining with your family and watching your kids chugging back their bottomless cokes. Of the diet variety, obviously, because you’re a responsible parent. We don’t judge. Then you wonder if the fountain Diet Coke is the same as the canned version. Ok, so it didn’t cross your mind, but it crossed others. To the extent that a class action was born against Coca-Cola when it was discovered the two were different. The canned version contains aspartame and the fountain, aspartame and saccharin because, according to Coca-Cola, it keeps better. None of this is disclosed to the punter unless the outlet sees fit and none of it is disclosable or actionable according to a recent ruling earlier this year.
Pure as sunlight
The allegation was that Coca-Cola had misled consumers. Implying, through lack of further explanation or description, that fountain and canned Diet Coke were similar. Moreover, that Coca-Cola had a duty to disclose its ingredients at the point of sale. The issue with saccharin (on behalf of consumers) being the possibility it’s a carcinogen. So, a lot to unpick. The court held consumers had not been misled and Coca-Cola had no duty to disclose its ingredients in the retail circumstances of the action and further, the class action could not define injury. And if you can’t do that, you can’t grab a hatful of cash by way of damages. It was too indefinite being largely based on an individual’s subjective preference. Coca-Cola maintain saccharin is safe and the Food and Drug Administration (US) confirmed this to be so in 2000. So, it must be true.
Good til the last drop
Now we know – fountain Coca-Cola is a little different, it’s not unlawfully dispensed to you or your children and as for the safety of saccharin (and aspartame for that matter) there is much scientific research to be sifted if you’re prepared to put a shift in. Or just refill and enjoy your time with the kids.
And then Coke Zero gets a kicking. Back to work.
We’ve got a taste for you
It turns out the sweetener for Coke Zero is bought in and it’s called Ace-K sweetener. Its real name is the less taggy “acesulfame potassium” and it’s 200 times sweeter than sugar with no calories and no aftertaste – apparently. Celanese Corporation own the recipe under the registered trademark Sunett. The manufacturer sought to patent Sunett presumably to enable further financial exploitation. All perfectly legitimate if the court so allows.
No can do, said the court. They reasoned that because the ingredient was already in Coke Zero and widely drunk, the opportunity to patent the recipe had passed, even though it had never been disclosed by the manufacturer. You see, a patent is designed to give an inventor a maximum of 20 years patent protection. If you allow someone to sell the product and then seek a patent later, that person has artificially extended the length of his patent monopoly. As artificial as the sweet taste itself. The action fell at the hands of the ‘on sale bar’, as its catchily known in the legal trade.
Coke adds life
That was this summer’s excitement for Coca-Cola. Happily, for it, it’s all over with successful defences all round – bravo and bumps for the lawyers. Until next time and there surely will be a next time. As said, nice steady work if you can get it.
Coca-Cola, like Don, knows only too well:
“There will be fat years and there will be lean years, but it is going to rain”.
Murray Fairclough
Development Underwriter
OPUS Underwriting Limited
underwriting@opusunderwriting.com
