The "Trashing" of Coke: Product Disparagement or Free Speech?

By Panhard [GFDL  CC-BY-SA-3.0] / Wikimedia Commons

Are you legally permitted to depict your competitor's products in a heap of trash to make an environmental comparison? Coca-Cola doesn't think so.

The megabrand's trademark lawyers recently sent a cease and desist letter to a soft drink competitor called Sodastream, about its new, aggressive international advertising campaign.

Sodastream sells a variety of flavoring and carbonating devices that allow consumers to essentially create and bottle their own soft drinks.  Part of Sodastream's pitch is that it claims to be more environmentally-friendly than its pre-packaged soft drink competitors.

In 2010, after a successful IPO, Sodastream launched an international campaign purportedly aimed at raising awareness of bottle and can consumption. The campaign involves the display of 9-cubic meter cages in various countries, each containing 10,657 bottles and cans gathered by Sodastream from landfills. 

Begun in Belgium, the "Cage campaign" has since visited 30 countries with the message that the waste produced by one family over the course of five years from beverage containers – 10,657 bottles and cans – can be replaced by a single Sodastream bottle.

On its website, Sodastream makes the following environmental and competitive claims about its products:

Eirik Newth / Creative Commons

"One SodaStream carbonator makes 60 or 110 liters, equivalent to 170 or 310 aluminum cans! When empty, the carbonator is refilled and reused, ready to make more fizzy and tasty soda whenever you want it."

While Coca-Cola's demand letter is focused on allegations under South Africa's unfair competition law, the broader legal question is relevant within the U.S., as well.

Indeed, this question is particularly germane given Sodastream is apparently bringing its marketing campaign right to Coca-Cola's doorstep in Atlanta, Georgia.

Despite arguments that such advertising is protected free speech under the First Amendment, the use of a competitor's branded product in such a commercial manner may nonetheless be actionable under U.S. intellectual property law.

First, federal trademark law contains an anti-dilution provision, which prohibits the use of commercial advertisements which dilute a brand by "tarnishment." Dilution can be actionable even if the consumer is not confused as to the source of the goods being advertised.

Second, by creating a heaping pile of trash made up (at least in part) of Coca-Cola branded products, Coca-Cola could argue that there is an implied and unfair product and brand disparagement that harms its goodwill among consumers without justification or substantiation.

Sodastream would presumably counter by claiming that the Coca-Cola product is not being disparaged.  Rather, Sodastream could contend that it is merely engaging in a form of truthful, protected free speech that accurately demonstrates the environmental impact that canned soda has.

In the end, if ever litigated, the final outcome in the U.S. would turn on whether a Court would consider the Sodastream campaign a form of constitutionally protected free speech about the environmental impact of a competitor, or nothing more than trademark dilution and product disparagement by an overly aggressive upstart.

Under Armour Lawsuit Full of Rhetoric, but Legal Test is Straightforward

Billion dollar sportswear and sneaker manufacturer Under Armour recently filed a trademark infringement lawsuit accusing Maryland-based startup beverage company BodyArmor of copying Under Armour's name, logo and marketing.  Here are a few observations about this particular lawsuit.


First, purely from a marketing and promotion standpoint, the filing of this case was probably the greatest gift that the startup beverage maker could have possibly received from anyone.

Indeed, the opportunity to generate and benefit from massive amounts of free press was capitalized upon by BodyArmor's owners -- the same mega-entrepreneurs who founded vitamin water, sold that brand to the Coca-Cola Company in 2007 for $4.1B, and who are considered leading experts at creative brand building in the beverage industry.


In fact, normally filing an Answer to a Complaint is a fairly mundane procedural act, as an Answer typically contains standard denials, recitations and defenses, but little fireworks or rhetorical opportunities.

However, seizing the moment and a unique opportunity for using litigation as part of brand building, BodyArmor issued an unusual, nationwide press release along with the filing of its Answer, threading populist themes of "fighting back against trademark bullying," a refrain often cited by accused infringers today.

In its Answer, the Defendant countered by alleging that "[i]t is nearly impossible that consumers or retailers of either brand would confuse the two.  Under Armour and BODYARMOR operate in disparate industries, produce distinctly unrelated products, and share no branding or logo similarities."

Nonetheless, despite the rhetoric of "bullying" and personalities involved, the merits of the trademark case require a fairly garden variety legal analysis. 


The case will turn on the jury evaluating existing marketplace conditions, and determining whether or not consumer confusion is likely based on perceptions of the beverage's name, logo and marketing materials.

To ultimately prevail on its trademark infringement claims, Under Armour will need to demonstrate to a jury, by a preponderance of the evidence, that ordinarily prudent consumers encountering the BodyArmor product and advertisements in the marketplace will likely be confused into believing that the beverage emanates from, is endorsed, sponsored by, or affiliated with Under Armour.


This analysis involves using a flexible eight-factor test called the Polaroid test first articulated by Judge Friendly in a famous case brought by Polaroid against a company called Polarad Electric.


The eight factors described in the Polaroid case are:  the strength of the trademarks involved, the proximity of the products in the marketplace, the likelihood that the second-comer will "bridge the gap" in the marketplace between himself and the senior user, the sophistication of the consumers, any instances of actual confusion, the quality of the junior user's products, the intent of the junior user, and the similarity of the competing marks.

Further, marshaling evidence will entail the parties introducing competing consumer surveys through expert witnesses, who are skilled professionals with advanced marketing degrees and backgrounds, charging hundreds of dollars per hour.


Each expert witness will presumably challenge aspects of the adversary's expert's methodology and reach the exact opposite conclusion about the likelihood of confusion.

The parties and their witnesses will also spend countless hours scrutinizing the respective trademarks bit by bit, comparing them side-by-side, as well as examining the appearance of the respective products themselves.  


But in the end, when all the rhetorical fireworks are over, and the allegations of "fighting back against bullying" die down, the case will ultimately be decided based upon whether the jury believes that Under Armour has sustained its burden of proving that consumer confusion from the beverage is likely under prevailing marketplace conditions.