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Jacob E. Gersen & C. Scott Hemphill, The Coca-Cola Bottle: A Fragile Vessel for Building a Brand, in Legal Applications of Marketing Theory (Jacob Gersen & Joel Steckel eds., forthcoming 2023).

Abstract: The Coca-Cola bottle is celebrated today as a design classic and the paradigmatic illustration of protected trade dress. How the Coca-Cola Company achieved that exalted position, however, is poorly understood. This essay is an effort to fill that gap. As we explain, the bottle’s IP protection in the early years, pursued by means of design patents and unfair competition claims, was flawed and fragile. The Company’s patent strategy suffered from several defects. Its first patent covered a prototype and arguably did not stretch to cover the production bottle, which differed significantly from the prototype. Its weak position was revealed in failed litigation that narrowly construed the patent. A belated second patent, essentially covering the production bottle, was sought years after production began. This patent might well have been invalid, given its close resemblance to the prior art production bottle, and in any event could not have been applied retroactively to prevent copying. The striking implication of these missteps is that other firms were probably legally free to use the hourglass shape as soon as the first bottle came off the production line in 1916. The Company’s unfair competition approach faced uncertainties too. The patents bought time for secondary meaning to develop, but their flaws put that development at grave risk. Moreover, early case law rejected efforts to convert short-term design patent exclusivity into long-term unfair competition protection. Although courts eventually accepted this sort of conversion, during the early years it posed an existential threat to the viability of the Company’s unfair competition claims. Thus, in multiple respects, this most famous example of trade dress was built on a surprisingly shaky legal foundation.