June 26, 2012
A recent legal kerfuffle between Coca-Cola and SodaStream (a manufacturer of home soda making systems and concentrated flavors) might be sign of things to come.
SodaStream has been using displays of discarded soda bottles as way of dramatizing their own ecologically smaller footprint. The displays contain the discarded bottles of various brands, Cola-Cola as well as Pepsi, but it was Coke that took the bait.
The display at the Oliver Tambo Airport in Johannesburg angered Coca-Cola South Africa. A lawyer on behalf of the company sent a letter to SodaStream demanding that it “cease and desist” the display, contending that it was slanderous, and that Coca-Cola has copyright to its brand, logo, and beverage bottles.
Bottle battle between SodaStream and Coca-Cola escalates
Packaging Digest, June 22, 2012
SodaStream’s position is, “You sold the product, and the sale terminates these rights. Besides, we collected the bottles from the garbage. If the cans in the garbage are yours, go and collect them from all over the world.”
As consumers we still assume that, by purchasing a product we then own the object. Yes, digital products have muddied the water a bit. (You own the CD but not the music on it.) What Coca-Cola is doing is a little different: using their trademark right to try and prevent their empty packaging from being displayed in an unflattering light. But it’s just the latest manifestation of trend that’s been building for a while now.
A case now heading to the Supreme Court, “Kirtsaeng v. John Wiley & Sons, Inc.” also involves a new broader interpretation of trademark and product ownership.
We are working to defend a long-standing principle known as the “First-Sale Doctrine.” This common-sense rule gives us the right to sell most property we own, but big businesses have been trying to chip away at out our rights in the courts. If the Supreme Court supports the lower court’s decision, we won’t really “own” anything if any part of it was made in a different country. And practically anything you own — from your iPod to your house — could have been made abroad, in whole or in part.
Similar to the old joke about renting (rather than buying) beer, there seems to be an increasing legal momentum for the idea that we may not fully possess our possessions. Trademark law may turn out to be promising tool for companies that would like to exert more control over their products after they are ostensibly “sold.”
As for Coke versus SodaStream it’s important to note that it’s a dispute between two business entities with competing interests. Since corporations are not people, it’s not as if Coke is depriving people of their right to do as they please with their empty Coke bottles. At least, not yet.
I wouldn’t be surprised to see more examples of this type of corporate push back against unauthorized uses of trademark packaging. I’ve speculated before about how often brand-name products are mentioned in negative news stories —“Baby found in Timberland Box”— but figured there wasn’t much a company could do about it. That may be changing. Corporations are getting more powerful. If a sleeping giant can be roused to anger by a relatively small company like SodaStream, there may come a time when an artist like Paul McCarthy, who has exhibited filthy and unappetizing name brand products, will be sued for slander.