Financial Times

David vs Goliath beverage fight
Colas’ battle in Lankan court
By Quintus Perera
A small beverage company has done the unbelievable - taking on a multinational head-on in a Sri Lankan court battle over the use of the name 'Cola'.

Pet Packaging (Pvt) Ltd, a small manufacturer and bottler of beverages with a plant at Kadawatha under the 'my Cola' brand is defending itself in an action by Coca Cola International, USA and its local unit Coca-Cola Beverages Sri Lanka (Pvt) Ltd, saying the word 'Cola' is a generic term used widely in the beverages world.

Last month Coca Cola succeeded in obtaining an enjoining order issued by the Colombo Commercial High Court restraining 'my Cola' from using contoured bottles, designs and labels identical or similar to those used by Coca-Cola Beverages and its international firm. It alleged that Pet Packaging was using identical or similar bottles to those used by 'Coca-Cola' to package a beverage named 'my Cola'.

The 'my Cola' range of products which also include 'my Lime', 'my Orange' and 'my Soda' was launched in the market in January this year and is available in supermarkets. Pet Packaging is also the producer and marketer of mineral water under the 'Cristal' brand.

In objections filed in court last week, the local company urged court to dismiss Coca Cola's application saying "Cola" is a generic term which encompasses a number of "cola" drinks consisting of flavouring extracts of the Kola Nut, Spice Oils and other aromatics, caramel colouring, sugar and other sweeteners alone or combined with phosphoric acid or citric acid, carbon dioxide for effervescence and water.

It said the quality of 'my Cola' was different to 'Coca Cola' and also far superior to the international product, accusing Coca Cola of maliciously defaming the local company by suggesting that “my Cola” is a beverage of “low quality”.

The defendant company said there was nothing unique or distinctive in the contoured bottle used to market Coca Cola as contoured bottles have been used for a long time by manufacturers of "Cola" beverages to marketing their product.

The contoured bottles are used to market beverages not in order to identify the beverages or the manufacturers or for any distinction but for the purpose of easy handling by the consumer, Pet Packaging argued in defence of the bottle shape.

Supporting the claim, the company filed three contoured bottles of American Cola, Wake up Cola and Trendy Cola and a photograph of the same in court. Despite the registration of the "Coca Cola" trade mark, the beverage sold under the said name is known to consumers within and outside Sri Lanka as "Coke".

Coca Cola is one of a large number of different brands of Cola beverages that's manufactured and marketed the world over. beverages manufactured and marketed by persons other than the plaintiffs (Coca Cola) include the Cola beverages marketed under the brand names American Cola, Wake up Cola and Trendy Cola.

All Cola beverages of all brands are maroon in colour and all use red or reddish labels with the brand name written in white letters for better visibility, the defendant company said backing the claim by filing colour photographs of the labels of the brands of Cola beverages marketed under the brand names trade marks Mecca Cola, Hoop Cola, Arab Co l a, Vita Cola, American Cola, Virgin Cola, Club Cola and French Cola.

Pet Packaging said the 'get up' of the labels used by Coca Cola to market its product was not uniform and differs from one another. It said the plaintiffs have suppressed these facts from court and misrepresented a material of fact to court by stating and/or suggesting that all labels used to market 'Coca Cola' have the same 'get up' and/or 'trade dress'.

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