Plaintiff's predecessors had long used and registered the mark Coca-Cola, and both lower courts agreed that, apart from one issue, plaintiff was entitled to equitable relief. The mark had acquired a secondary significance identifying plaintiff's product alone, and defendants sold an imitation beverage using the word Koke to benefit from plaintiff's advertising and pass off their product as plaintiff's goods. The court of appeals concluded that plaintiff's use of the mark and related advertisements were fraudulent because the drink no longer contained cocaine and derived little effect from coca leaves or cola nut. Before suit was filed, however, plaintiff had eliminated cocaine, had advertised that the drink would not contain cocaine, and retained only the name and pictures of leaves and nuts.
Issue
Whether Coca-Cola was barred from equitable relief for trademark infringement and unfair competition because its trademark and advertising allegedly misled the public by suggesting the beverage contained cocaine or substantial coca and cola ingredients. Also, whether plaintiff could exclude defendants from using the word Dope.
Rule
Equity will not protect a device whose very purpose and effect is to swindle the public, but a plaintiff's defects do not broadly justify allowing another to swindle the plaintiff. A trademark that has acquired secondary meaning and identifies a single source remains protectable when, at the time suit is brought, it primarily signifies the plaintiff's familiar product rather than a literal description of ingredients, absent proof that the mark itself is then being used as a fraud.
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For decades, Harbor Peak Bottling in Portland, Oregon has sold a soft drink under the name "BerryMint." The drink originally contained berry extract and mint oil, but for the last twelve years it has used neither; consumers now use "BerryMint" to identify Harbor Peak’s signature drink, and Harbor Peak has publicly stated for years that the beverage no longer contains mint oil. A rival, Cedar Vale Drinks, begins selling a similar soda in Seattle under the name "Berrymintz" and instructs distributors to place it near Harbor Peak’s product to capture the same customers.
If Harbor Peak seeks an injunction, which result is most consistent with the governing rule?
Explanation. Equity will protect a mark that has acquired secondary meaning identifying a single source, even if the component words are no longer literally accurate, unless the very purpose and effect of the mark is to swindle the public. The relevant question is whether, at the time suit is brought, the mark chiefly signifies the plaintiff’s familiar product rather than a false description of ingredients. Here, Harbor Peak has long used the mark, consumers associate it with one source, and Cedar Vale adopted a similar term to pass off an imitation. (Derived from Coca-Cola Co. v. Koke Co. of America (n.d.).)