The case concerned Pepsi’s ‘Carolina Bottle’ in comparison to Coca-Cola’s ‘Contour Bottle’ as shown below.
Coca-Cola's 'Contoured Bottle' was the subject of a number of registered trade marks:
Both Pepsi and Coca-Cola’s bottle’s origins were discussed in view of the history of the bottles and the design. It was seen that the waist of the Coca-Cola registration would not be not more prominent than the other features of the trade mark in the eyes of an ordinary consumer. It was noted that ‘Carolina bottle’ had no fluting and a belt band in the middle. The horizontal waves of the Pepsi’s bottle were seen to be distinguishing features.
More particularly, with respect to the fluted trade marks Justice Besanko held:
- The outline or silhouette is not the essential feature.
- There is no reason to give any feature prominence over the other features. It cannot be said, for example, that a bottle with a waist is so extraordinary, or a bottle with vertical flutes and a clear belt band so common, that the outline or silhouette should be considered the essential feature.
- The outline or silhouette of the Carolina Bottle was not deceptively similar.