Trademark Law

Article Spotlights VitaminWater Trade Dress Enforcement

By Ryan Gile

Law.com posted an article (link here) regarding the trade dress enforcement efforts undertaken by Energy Brands, Inc. (d/b/a Glacéau), the company behind the fruit-flavored ?enhanced? water VitaminWater which was purchased by Coca-Cola in 2007 for $4.1 billion. The article describes the efforts by the company?s legal team in aggressively going after competitors that try to imitate VitaminWater's bell-shaped water bottles with their two-toned labels (pictured above).

Glacéau is currently seeking to register its VitaminWater bottle with the U.S. Patent and Trademark Office ("PTO"). Glacéau received a registration for the bottle label. However, Glacéau?s application to register the actual bottle design (filed June 24, 2008) has been preliminarily refused by the PTO on the basis that the product packaging is functional and thus incapable of serving as a source identifier and furthermore on the basis that the packaging is not inherently distinctive. The PTO is currently only willing to register the wording and design on the label (which Glacéau already has).

With Coca-Cola?s trademark legal team supporting it, I would expect a significant response to the PTO?s action by Glacéau arguing that its bottle design is not functional and that product packaging is inherently distinctive (or alternatively, Glacéau can prove acquired distinctiveness based on its strong marketing efforts to date ? after all, if Coca-Cola was willing to pay $4.1 billion for the company, it must have been doing something right).

Anyone care to make any predictions on whether Glacéau will prevail? One thing I could not have ever predicted ? consumers would pay good money for flavored sugar water. Isn't this just bottled Kool-Aid?

Full post as published by Las Vegas Trademark Attorney on February 19, 2009 (boomark / email).