Coca-Cola Co has lost its attempt to stop local rival Frucor Beverages from using a similar contour-shaped bottle for the Pepsi range of drinks in New Zealand.

In the High Court in Auckland, Justice Edwin Wylie turned down a claim that Frucor breached Coke's registered trademarks by selling Pepsi products in a similar shaped bottle for the past four years, saying the bottles weren't materially similar and that he did "not consider that there is any reasonable likelihood of confusion or deception," according to a judgment published today.

Click here to read the judgement

The judge also didn't agree that Frucor breached the Fair Trading Act by misleading or deceiving the public by using the bottles, because of the differences between them.


Coke claimed Frucor, which has been bottling Pepsi products in New Zealand since 1999, was in breach of three trademarks by using a similar shaped bottle, and was passing it off as a Coke product, breaching fair trading law.

Frucor rejected the claim, saying there were significant differences between the bottles, and that in every case the bottles clearly featured Pepsi's own brands.

"In my judgment, TCCC cannot extend the scope of its registration by going on to use as a sign the silhouette derived from its registered marks when that sign is not itself registered," Justice Wylie said.

To compare the registered marks, the judge said he had to consider them as a whole, "because the average consumer normally perceives a mark as a whole, and does not proceed to carefully analyse its various details," the judge said.

"The primary feature the bottles have in common - namely, a waist - is not sufficient to justify a finding that there is any overall similarity between the (Coca Cola) registered mark and the (Pepsi) Carolina bottle," he said. "The waists are not the same or even substantially similar."

Given Coke's more than 90 percent share of the cola market, the judge said it was in a unique position to be able to find out whether retailers had been confused by the bottle's shape, the judge said.

Justice Wylie also questioned by Coke didn't complain about the bottle until almost a year after its release, and that it hadn't taken any steps in other nations where it was sold.

The judge awarded costs to Frucor, and gave Frucor 15 working days to file a memorandum on costs and disbursements. Coke will then get another 15 working days to reply.