387
[1961]
REPORTS OF PATENT, DESIGN AND TRADE MARK CASES
[No. 15]
Coca-Cola Co. v. Barr (A.G.) & Co., Ltd.
COURT OF SESSION, SCOTLAND
Before
LORD WALKER
14th July, 1961
THE COCA-COLA COMPANY
5
v. A. G.
BARR & COMPANY LTD.
Passing-off-Use by Respondents of bottles of special shape alleged by the
Petitioners to be of the distinctive shape associated with the Petitioners' product
" Coca-Cola."
The Petitioners had for many years manufactured and sold on a very large scale
a non-alcoholic effervescent drink in bottles which they alleged were distinctive in
10 that they had a waist, carried no label, and had fluting. For some months the
Respondents had been using a bottle of similar size which had fluting and a waist,
but no label, for the sale of beverages called "Kolabar ", "Cydrap" and
"Stilkrush." The last two drinks were distinguishable in colour from "CocaCola ", but both" Coca-Cola" and" Kolabar" were of the same dark brown,
15 translucent colour.
On an assurance being given on behalf of the Respondents that pendente lite they
would discontinue bottling" Kolabar" in the type of bottle complained of, held
that on the balance of convenience the Petitioners' application for interim interdict
shcmld be refused.
20
This motion for interim interdict came on for hearing before Lord Walker on 14th
July, 1961.
Robertson, Q.c., Emslie, Q.c., and Mackay (instructed by Shepherd &
Wedderburn, W.S.) appeared for the Petitioners. Grieve, Q.c., and Stewart
(instructed by Nightingale & Bell, S.S.C.) appeared for the Respondents.
Emslie, Q.c. (for the Petitioners).-The Petitioners have endeavoured unsuccessfully to persuade the Respondents not to use the offending bottles. There is a very
real danger that the bottle used by the Respondents for containing Kolabar will be
mistaken by the public for the Petitioners' bottle containing Coca-Cola. The harm
done to Coca-Cola by the continued sale of these bottles might well be irrevocable.
30 To protect the goodwill associated with the types of bottles used by the Petitioners
it is essential that interim interdict should be pronounced.
25
Grieve, Q.c. (for the Respondents).-The Respondents have no wish to derive
any benefit from an imitation of the Coca-Cola bottle. The position of Coca-Cola
in the soft drinks industry in Scotland is insignificant in comparison with that of
35 the Respondents. Although there is no reasonable risk of confusion, instructions
have been given this morning by the Respondents to discontinue bottling Kolabar in
the type of bottle complained of, and that position will continue until the issue
betwen the parties has been determined. In these circumstances there is no
justification for interim interdict. There is no possibility of the Respondents'
40 "Stilkrush" or "Cydrap" being confused with Coca-Cola, and an interdict
preventing the Respondents from using their new type of bottle for any soft drink
would seriously interfere with a large part of the Respondents' business.
On the same day the Lord Ordinary (Lord Walker) refused Interim Interdict.
3~8
[No. 15]
REPORTS OF PATENT, DESIGN AND TRADE MARK CASES
[1961]
Coca-Cola Co. v. Barr (A.G.) & Co., Ltd.
Lord Walker.-In this petition the Coca-Cola Company seek to interdict A. G.
Barr & Company Limited from passing off as and for the petitioners' product soft
drinks not the petitioners' product by supplying or selling the same for consumption
in the United Kingdom in bottles having the distinctive shape used by the
petitioners for the sale of Coca-Cola. The distinctive shape of the petitioners' bottle 5
is that it has a waist, that it bears no label and that it has fluting. It appears that
since about the end of March of this year the respondents have been using a bottle
of similar size which has fluting and has a waist and bears no label. The two
bottles which have been placed before me are similar although not identical in
appearance. I think the petitioners have made out a prima facie case that the bottle 10
used by the respondents for containing their Kolabar might well be mistaken by
members of the public for the petitioners' bottle containing their Coca-Cola. A
large part of the resemblance, however, resides in the colour of the contained
liquid, the petitioners' Coca-Cola and the respondents' Kolabar, both of which
might be described as being a dark brown translucent liquid.
15
Now Mr. Grieve for the respondents has intimated that instructions have been
issued by his clients this morning to cease bottling their Kolabar in the type of
bottle resembling the petitioners' bottle, and that position will continue until the
decision of this case. That instruction having been given, and I accept it as having
been given, dispenses to a large extent with the need of the petitioners for protection 20
by an interim interdict. Mr. Emslie for the petitioners intimated however that he
was not completely satis'fied by that undertaking. It appears that the respondents
who are large suppliers of soft drinks in this country also supply a substance called
Stilkrush and another substance called Cydrap in the same type of bottle. These
liquids have a completely different colour which distinguishes them from the 25
substances known as Coca-Cola or Kolabar.
If the respondents were interdicted from using their new type of bottIe for the
sale of Stilkrush or Cydrap that might well interfere seriously with a large part of
their business. On the other hand if interim interdict were refused the use of the.
new type of bottle for the sale of the lighter coloured liquids might to some extent 30
impinge on the goodwill that the petitioners have acquired through the use of their
special type of bottle. I have to balance the hardship and inconvenience to the
one party as against the other. I am informed that up to date, the Coca-Cola
Company has not sold light coloured soft drinks in this country although they do
sell them on the other side of the Atlantic in similar containers. It is no doubt true 35
as Mr. Emslie says that at any time his clients might desire to sell light coloured
drinks in their distinctive bottles in this country and if Messrs. Barr were allowed
to sell their light coloured drinks in similar types of bottles it might be injurious to
the petitioners' goodwill. However, I think that that is something which is hypothetical and contingent.
40
On the whole matter having regard to the instructions which the respondents have
issued this morning I think that equity will best be served and the status quo
maintained by refusing interim interdict. I shall accordingly simply order intimation
and service of the petition.
P.w.P. O'B. 45