throbber
Case: 19-2088 Document: 61 Page: 1 Filed: 08/03/2020
`
`NOTE: This disposition is nonprecedential.
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ROYAL CROWN COMPANY, INC., DR
`PEPPER/SEVEN UP, INC.,
`Appellants
`
`v.
`
`THE COCA-COLA COMPANY,
`Appellee
`
`ANDREI IANCU, UNDER SECRETARY OF
`COMMERCE FOR INTELLECTUAL PROPERTY
`AND DIRECTOR OF THE UNITED STATES
`PATENT AND TRADEMARK OFFICE,
`Intervenor
`______________________
`
`2019-2088
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Trademark Trial and Appeal Board in Nos.
`91178927, 91180771, 91180772, 91183482, 91185755,
`91186579, 91190658.
`______________________
`
`Decided: August 3, 2020
`______________________
`
`LAURA POPP-ROSENBERG, Fross Zelnick Lehrman &
`Zissu, P.C., New York, NY, for appellants.
` Also
`
`

`

`Case: 19-2088 Document: 61 Page: 2 Filed: 08/03/2020
`
`2
`
`ROYAL CROWN COMPANY, INC. v. COCA-COLA COMPANY
`
`represented by BARBARA A. SOLOMON.
`
` BRUCE WILLIAM BABER, King & Spalding LLP, Atlanta,
`GA, for appellee.
`
` CHRISTINA J. HIEBER, Office of the Solicitor, United
`States Patent and Trademark Office, Alexandria, VA, for
`intervenor. Also represented by THOMAS L. CASAGRANDE,
`THOMAS W. KRAUSE, FARHEENA YASMEEN RASHEED,
`JENNIFER E. MARINO.
` ______________________
`
`Before NEWMAN, LOURIE, and O’MALLEY, Circuit Judges.
`LOURIE, Circuit Judge.
`
`Royal Crown Company, Inc., and Dr. Pepper/Seven-Up,
`Inc. (collectively, “Royal Crown”), appeal from a decision of
`the Trademark Trial and Appeal Board of the U.S. Patent
`and Trademark Office, dismissing Royal Crown’s consoli-
`dated opposition to sixteen trademarks proposed for regis-
`tration by Coca-Cola Company (“Coca-Cola”). See Royal
`Crown Co. v. Coca-Cola Co., Opposition Nos. 91178927
`(Parent Case), 91180771, 91180772, 91183482, 91185755,
`91186579, 91190658 (TTAB May 3, 2019) (“Board Deci-
`sion”). Because Royal Crown received the only relief it re-
`quested when Coca-Cola disclaimed the term “ZERO” in
`the applications at issue, Royal Crown’s appeal is dis-
`missed as moot.
`
`BACKGROUND
`Royal Crown and Coca-Cola are competitors in the bev-
`erage market. Coca-Cola filed the sixteen applications at
`issue to register marks appending the term ZERO to some
`of its existing beverage brands. Royal Crown filed opposi-
`tions, claiming that each of the marks is generic or merely
`descriptive of the zero-calorie attributes of the beverages.
`J.A. 120–28. Coca-Cola’s applications and Royal Crown’s
`
`

`

`Case: 19-2088 Document: 61 Page: 3 Filed: 08/03/2020
`
`ROYAL CROWN COMPANY, INC. v. COCA-COLA COMPANY
`
`3
`
`respective oppositions, later consolidated before the Board,
`are listed below.
`Application
`No.
`78580598
`78316078
`78664176
`77175066
`77175127
`
`Mark
`
`77176108
`
`77176127
`77176279
`
`77097644
`76674382
`76674383
`77176099
`77257653
`
`Opposition
`No.
`91178927
`91180771
`91180772
`
`
`
`
`91183482
`
`
`91185755
`
`91186579
`
`COCA-COLA ZERO
`SPRITE ZERO
`COKE ZERO
`COKE CHERRY ZERO
`CHERRY COCA-COLA
`ZERO
`COCA-COLA VANILLA
`ZERO
`CHERRY COKE ZERO
`COCA-COLA CHERRY
`ZERO
`PIBB ZERO
`COKE ZERO ENERGY
`COKE ZERO BOLD
`VANILLA COKE ZERO
`VANILLA COCA-COLA
`ZERO
`POWERADE ZERO
`77309752
`FANTA ZERO
`78620677
`VAULT ZERO
`91190658
`78698990
`Board Decision, slip op. at 3–4. In its consolidated opposi-
`tion, Royal Crown argued that each of the registrations
`must be denied “absent the entry of a disclaimer of the term
`‘zero.’” J.A. 128.
`In relevant part, the Board dismissed Royal Crown’s
`oppositions. Royal Crown Co. v. Coca-Cola Co., Opposition
`No. 91178927 (Parent Case), 2016 WL 9227936, at *1 (May
`23, 2016).1 It found that Royal Crown failed to show that
`
`1 The Board also dismissed Coca-Cola’s opposition to
`two of Royal Crown’s proposed marks—DIET RITE PURE
`
`

`

`Case: 19-2088 Document: 61 Page: 4 Filed: 08/03/2020
`
`4
`
`ROYAL CROWN COMPANY, INC. v. COCA-COLA COMPANY
`
`ZERO is generic for zero-calorie products in the genus of
`soft drinks, sports drinks, and energy drinks, id. at *12,
`and, moreover, that Coca-Cola proved that the term ZERO
`has acquired distinctiveness for soft drinks and sports
`drinks, though not for energy drinks, id. at *15. Thus, the
`Board held that Coca-Cola’s applications could be regis-
`tered even absent a disclaimer of the term ZERO.
`Royal Crown appealed that decision to this court. We
`vacated the decision of the Board for applying the wrong
`legal standard for genericness of the term ZERO and for
`failing to make a finding on the term’s descriptiveness be-
`fore addressing acquired distinctiveness. Royal Crown Co.,
`Inc. v. Coca-Cola Co., 892 F.3d 1358, 1366 (Fed. Cir. 2018).
`We then remanded the case for the Board to address these
`issues under the correct standards. Id. (“On remand, ac-
`cordingly, the Board must examine whether the term
`ZERO, when appended to a beverage mark, refers to a key
`aspect of the genus.”); id. at 1369 (requiring the Board to
`“make an express finding regarding the degree of the
`mark’s descriptiveness on the scale ranging from generic to
`merely descriptive”).
` On remand, the Board requested briefing to frame the
`issues for decision. Instead, Coca-Cola filed a motion to
`amend each of its applications to disclaim the term ZERO.
`Royal Crown protested that the disclaimer was both proce-
`durally improper and not case-dispositive. But the Board,
`noting that the disclaimer was the only relief requested by
`Royal Crown, granted Coca-Cola’s motion, entered the
`
`
`ZERO and PURE ZERO—for which Royal Crown had dis-
`claimed the term ZERO. 2016 WL 9227936, at *18. The
`Board sustained Royal Crown’s opposition to another of
`Coca-Cola’s proposed marks, FULL THROTTLE ZERO,
`which is no longer at issue because Coca-Cola assigned its
`interest to a third party that elected not to appeal from the
`Board’s decision, 892 F.3d at 1362 n.2.
`
`

`

`Case: 19-2088 Document: 61 Page: 5 Filed: 08/03/2020
`
`ROYAL CROWN COMPANY, INC. v. COCA-COLA COMPANY
`
`5
`
`disclaimer in each application, and dismissed Royal
`Crown’s consolidated opposition. Board Decision, slip op.
`at 3–4.
`
`Royal Crown then filed the instant appeal. The Direc-
`tor of the PTO filed a motion to intervene, which this court
`granted.
`
`DISCUSSION
`We review the Board’s decision in accordance with the
`standards of the Administrative Procedure Act. Bridge-
`stone/Firestone Research, Inc. v. Auto. Club De L'Quest De
`La France, 245 F.3d 1359, 1361 (Fed. Cir. 2001) (citing
`Dickinson v. Zurko, 527 U.S. 150, 152 (1999)). We evaluate
`the Board’s legal determinations de novo and its factual
`findings for substantial evidence. Royal Crown, 892 F.3d
`at 1364–65 (citations omitted). The Board’s application of
`its own trial rules is reviewed for a determination of
`whether it is “arbitrary, capricious, [or] an abuse of discre-
`tion.” 5 U.S.C. § 706(2)(A); Ultratec, Inc. v. CaptionCall,
`LLC, 872 F.3d 1267, 1271–72 (Fed. Cir. 2017) (citing Red-
`line Detection, LLC v. Star Envirotech, Inc., 811 F.3d 435,
`442 (Fed. Cir. 2015)).
`Royal Crown raises three challenges to the Board’s de-
`cision. First, it claims that granting Coca-Cola’s post-trial,
`unconsented-to motion was procedurally improper and
`thus arbitrary, capricious, and an abuse of discretion. Sec-
`ond, it argues that, by simply entering Coca-Cola’s dis-
`claimer, the Board shirked its obligation to render a
`reasoned decision under the APA and deprived Royal
`Crown and this court of a decision on the merits. Finally,
`and more substantively, Royal Crown denies that Coca-
`Cola’s disclaimer mooted this appeal because Coca-Cola
`may file new applications for ZERO-inclusive marks or as-
`sert such scope for the instant proposed marks in future
`litigation.
`
`

`

`Case: 19-2088 Document: 61 Page: 6 Filed: 08/03/2020
`
`6
`
`ROYAL CROWN COMPANY, INC. v. COCA-COLA COMPANY
`
`Coca-Cola responds that this appeal is moot because
`the Board’s entry of Coca-Cola’s disclaimers granted Royal
`Crown all the relief it had requested. Coca-Cola also main-
`tains that the Board is permitted to grant an unconsented
`motion to amend the application under 37 C.F.R.
`§ 2.133(a), and that the basis of the Board’s decision is suf-
`ficiently clear under the APA. The Director adds that
`Royal Crown never opposed registration of the marks per
`se—only registration absent a disclaimer of the term
`ZERO—and thus it has received all of the relief it asked
`for.
`We agree with Coca-Cola and the Director. The Board
`did not abuse its discretion in granting Coca-Cola’s motion,
`and its entry of the disclaimer renders this appeal moot.
`As Coca-Cola and the Director point out, § 2.133(a) does
`not allow amendments or disclaimers “except with the con-
`sent of the other party or parties and the approval of the
`[Board], or upon motion granted by the Board.” Royal
`Crown tries to show that the Board has interpreted this
`regulation to forbid unconsented motions after trial, but
`the Board decisions it cites instead tend to illustrate that
`the Board exercises its discretion to grant motions—for all
`kinds of amendments—in the appropriate circumstances,
`which usually align with general principles of administra-
`tive economy and vary depending on the case. For exam-
`ple, in Zachry Infrastructure, LLC v. Am. Infrastructure,
`Inc., 101 U.S.P.Q.2d 1249 (TTAB 2011), cited by Royal
`Crown, the Board simply invoked its discretion to defer
`consideration of the applicant’s motion to seek registration
`on the Supplemental Register—an action which, unlike
`disclaimer, would not have met the opposer’s request for
`relief—until genericness could be properly briefed. Id. at
`1254. Thus, neither Zachry nor any other decision cited by
`Royal Crown stands for the improbable notion that the
`Board is powerless to grant a motion to enter a disclaimer
`granting all the relief an opposer seeks.
`
`

`

`Case: 19-2088 Document: 61 Page: 7 Filed: 08/03/2020
`
`ROYAL CROWN COMPANY, INC. v. COCA-COLA COMPANY
`
`7
`
`Coca-Cola’s disclaimer grants Royal Crown what it
`sought in its opposition. Throughout this case, Royal
`Crown requested only that the Board require a disclaimer
`of the term ZERO before registering the marks at issue.
`Royal Crown, 892 F.3d at 1365 (“The only relief Royal
`Crown seeks in its oppositions to [Coca-Cola’s] applications
`is that [Coca-Cola] be required to disclaim the term ZERO.
`Royal Crown does not argue that, if [Coca-Cola] disclaims
`ZERO, the marks should not be allowed.”); J.A. 127–28 (re-
`questing that registration of the instant marks be “denied
`absent the entry of a disclaimer of the term ‘zero’”); J.A.
`225 (arguing that the Board, on remand, should “refuse
`registration of the Challenged Marks to [Coca-Cola] with-
`out disclaimer of the term” ZERO). Entry of Coca-Cola’s
`disclaimer entirely fulfilled Royal Crown’s request for re-
`lief, rendering its opposition superfluous, as the Board ex-
`plained in its decision. Board Decision, slip op. at 3.
`Furthermore, the appeal is moot because the sole rem-
`edy Royal Crown originally requested is now beyond the
`power of this court to grant. See Calderon v. Moore, 518
`U.S. 149, 150 (1996) (holding that an appeal should be dis-
`missed as moot when “a court of appeals cannot grant any
`effectual relief whatever”); North Carolina v. Rice, 404 U.S.
`244, 246 (1971) (“Mootness is a jurisdictional question be-
`cause the Court is not empowered to decide moot questions
`or abstract propositions.” (citations omitted)).
`Royal Crown argues that its appeal is not moot because
`Coca-Cola never conceded that the term ZERO is generic
`or merely descriptive in the relevant product genera, nor
`did the Board so hold, and Coca-Cola may in the future ap-
`ply for other ZERO-inclusive marks.
`But litigation is conducted for the purpose of obtaining
`relief, not an advisory opinion. While a Board opinion find-
`ing Coca-Cola’s ZERO-inclusive marks generic or merely
`descriptive in the relevant product genera may have been
`useful for Royal Crown in the future, such an interest is too
`
`

`

`Case: 19-2088 Document: 61 Page: 8 Filed: 08/03/2020
`
`8
`
`ROYAL CROWN COMPANY, INC. v. COCA-COLA COMPANY
`
`speculative to invoke the jurisdiction of this court. See
`Sanofi-Aventis U.S., LLC v. Dr. Reddy's Labs., Inc., 933
`F.3d 1367, 1373–74 (Fed. Cir. 2019) (rejecting the argu-
`ment that a potential preclusion defense in a hypothetical
`future case prevents mootness).
`Royal Crown has obtained what it requested in its op-
`position, disclaimer of the term ZERO in each of the trade-
`mark applications at issue. The Board’s decision reflects
`entry of those disclaimers. Accordingly, there is no case or
`controversy for this court to decide.
`CONCLUSION
`We have considered Royal Crown’s further arguments
`but find them unpersuasive. For the foregoing reasons,
`Royal Crown’s appeal is
`DISMISSED
`
`
`

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