Pepsi, arguably one of the most well recognised brands globally, has taken aim at another soft drink manufacturer for a copycat logo.
Pepsi are well known for their red, blue and white swirl design which they have used as their key brand for their soft drink products since 1991, known as the ‘Pepsi Globe’.
Teng Yun International succeeded in 2016 in the registration of a red, blue and white swirl circle design situated in a square which the image of s surfer in respect of soft drinks.
Pepsi filed for a declaration of invalidity of the mark, arguing that there is a likelihood of confusion between the marks and the use of the potentially confusing mark would take ‘unfair advantage’ of Pepsi’s reputation.
The UK Intellectual Property Office considered the application for invalidity.
Firstly, they considered the two marks level of similarity. While, the two marks were circular in design and were of the same colours, the Office deemed the level of visual similarity low due to the surfer figure in the potentially confusing mark. However, it did highlight the use of a blue background, recognising that it is part of Pepsi’s branding.
The key argument Pepsi brought was in respect of unfair advantage. The Office highlighted that as the goods will be displayed and available to consumers in close proximity to each, the visual similarities and differences are important.
Due to Pepsi’s high portion of the soft drinks market, the Office held that the contested mark would bring the earlier marks to the mind of consumers and Pepsi’s strong reputation may be affected.
Ruling that Teng Yun’s mark will free ride of the reputation of Pepsi, the application for invalidity was granted.
The key point to take from this case is the need to be distinctive! Develop your own brand, making you unique.
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