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NOTE: This disposition is nonprecedential.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 Opposition Mark
No. No.
78580598 91178927 COCA-COLA ZERO
78316078 91180771 SPRITE ZERO
78664176 91180772 COKE ZERO
77175066 COKE CHERRY ZERO
77175127 CHERRY COCA-COLA
ZERO
77176108 COCA-COLA VANILLA
91183482 ZERO
77176127 CHERRY COKE ZERO
77176279 COCA-COLA CHERRY
ZERO
77097644 PIBB ZERO
76674382 COKE ZERO ENERGY
76674383 91185755 COKE ZERO BOLD
77176099 VANILLA COKE ZERO
77257653 VANILLA COCA-COLA
ZERO
77309752 91186579 POWERADE ZERO
78620677 FANTA ZERO
78698990 91190658 VAULT ZERO
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
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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.
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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.
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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.
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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
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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