Two companies. Two “Vitamin Water” products being sold in China. Two bottles that look suspiciously similar. Well, actually, the bottles appear identical to me, and the design is rather distinctive. So is there an obvious intellectual property infringement here?1
Maybe, but don’t expect a lawsuit anytime soon.
The players are Coca-Cola and Nongfu Spring, competitors in the China beverage market (Disclosure: I’m a regular drinker of both Diet Coke and Nongfu Spring water. One of my cats refuses to drink any other bottled water but Nongfu, and she has excellent taste.)
The products are Coca-Cola’s “Glacéau Vitamin Water” and Nongfu’s “Victory Vitamin Water.” This is not a trademark dispute, so the branding of these products is beside the point. However, for what it’s worth, I have no freakin’ idea what “Glacéau” means, if anything. I suspect it’s just a made-up word that sounds vaguely like “Glacier,” has a Frenchy feel to it, and is relatively easy to trademark.
If you’re wondering just what “vitamin water” is, it is water laced with various vitamins that most of us already get in our food and/or daily vitamin supplements. The product is also referred to as “smart water” and “enhanced water,” the latter sounding suspiciously similar to “enhanced interrogation.” (I wonder what kind of liquid was used by the U.S. military when it water-boarded suspected terrorists?)
But I digress. According to press accounts, Coca-Cola started marketing their enhanced
interrogation water in China before Nongfu Spring. However, Nongfu was able to secure a design patent, presumably on the bottle.
In China, there are two ways to protect a design like this bottle: 3D trademark and design patent. Of the two, the design patent, also referred to as an industrial design, is by far the more likely, for various reasons. Although the Trademark Law allows for 3D trademarks, this has never really caught on much in this country, and such trademarks are comparatively rare.
On the other hand, design patents are extremely common, probably because they are cheap and are usually granted within six months from filing. You can’t swing a dead cat in the general vicinity of a big Chinese company these days without making contact with at least one or two design patents.
Coca-Cola was first in the market, but Nongfu patented the design. Hey, wait a second (you ask), aren’t patents only granted for new designs? Yes indeed. For existing designs, patent protection is not available.
This design is sufficiently distinct that it defies logic to suggest that these bottles were developed separately. Therefore one company copied the other’s design. Since Coca-Cola entered the market first, I’m going to assume that Nongfu is the culprit and that they filed for the patent after seeing the Coke design.
So will Coca-Cola go after Nongfu? Thus far, Coke has publicly criticized Nongfu and asked them to use different packaging, to no avail. Nongfu has said, in its defense, that the label it uses is quite dissimilar to that of the Coke product. This is absolutely true, but that issue is separate from the matter of the bottle design.
According to a company spokesman, Coca-Cola is not planning to take this issue to court. Why not? Obviously the Nongfu design is a copy, and the patent lacks novelty (i.e. it wasn’t a new design). So wouldn’t Coca-Cola win an infringement suit?
Not necessarily. Coca-Cola would no doubt succeed in invalidating the Nongfu design patent. However, since Coke doesn’t have a patent of its own, it cannot sue Nongfu for patent infringement. Other legal theories, such as unfair competition, seem rather weak to me.
Coke is therefore playing it smart here. Unless Nongfu makes a stupid move like suing Coke for patent infringement (theoretically it could do this, but ultimately it would lose the overall case), it doesn’t make any sense for Coke to escalate this fight.
Could Coca-Cola have avoided this situation? Yes, it could have filed for a design patent of its own prior to using the bottle. Many companies don’t bother obtaining such rights, though, and it’s quite possible that this current dispute with Nongfu is not seen internally as a big deal when compared to other IP infringement problems Coke has in China.
Sometimes it just isn’t worth it to escalate these IP battles. My only piece of advice here goes out to Nongfu, whose petulance has been amusing. First, they might wish to muzzle their spokesman, whose nationalistic nonsense is embarrassing:
[Spokesman] Zhou added that the vitamin water of the Coca-Cola company is overvalued; and the intention of launching “Victory Vitamin Water” is to protect Chinese consumers’ rights.
Somehow I don’t think this old-school blather would do much to influence an IP judge, if it ever comes to that. The last time I checked, issues related to pricing are not a valid defense against IP infringement.
Second, they have demanded an apology from Coca-Cola, claiming that Coke is engaging in dirty tricks because the Nongfu product has proved to be a strong competitor. There might be some truth to this, but it’s probably not a great idea to turn up the aggressive rhetoric when the design you’re using is obviously identical to that of the competition and you were second to market.
- The two possible causes of action are patent infringement and unfair competition. China Daily, which incorrectly (in this case) translated “抄袭” as “plagiarism” needs some serious editorial support. [↩]