Deliberate Differentiation

Celebrating the Coke Bottle at 100

BY JOSHUA L. COHEN | ORIGINALLY PUBLISHED IN PDMA VISIONS MAGAZINE, ISSUE 3, 2016 • VOL. 40 • NO.3

Coca Cola BottleAs Coca-Cola celebrates the centennial of its iconic Coke bottle this year, product innovators, marketing professionals and intellectual property counsel should pause to examine its origins and reflect on Coca-Cola’s achievement. With its unique design, the Coke bottle stood out among other colas and helped consumers to find — and bond with — the real thing.

The Coke success story represents a case study in “deliberate differentiation” and reveals strategies that can be used today for differentiating products deliberately. If companies plan for and purposely deliver differentiation, and then protect and promote it, they can guide the forces that create unique and iconic designs.

The Coke Bottle Story

Coca-Cola set out to beat imitators by helping customers “easily find the real thing at a glance, or even by touch.” To do so, Harold Hirsch, Coca-Cola’s lead attorney, was tasked with developing a strategy for securing a special bottle design. He asked Coca-Cola’s bottlers to unite behind a distinctive design and invited them to develop a “bottle so distinct that you would recognize it by feel in the dark or lying broken on the ground.”

Indiana’s Root Glass Company took on the design challenge and proposed a bottle inspired by ribbed cocoa beans. One hundred years ago in 1916, Coca-Cola concluded that Root Glass’s cocoa-beaninspired design best met its design requirement of distinctiveness.

To protect its new design differentiator and sustain the commercial advantage it conferred, Coca-Cola secured intellectual property protections. Initially, design patents protected ornamental features of the Coke bottle design. A design patent was issued in 1915 for an early design, to be followed later by U.S. Design Patent No. 63,657 for the “hobble skirt” contour bottle in 1923.

Coca-Cola also secured trademark registrations for the Coke bottle design, covering the bottle design with and without wording, in two-dimensional outline and the “negative image” of the outline. Other trademark registrations depict the bottle with additional elements, such as the famed “Coca-Cola” script.

For decades, Coca-Cola has strategically integrated its contour bottle design into all aspects of the product experience, including areas in which the actual bottle is nowhere to be found. Images of the iconic bottle are present on Coca-Cola’s branded paper cups for use with fountain beverages, on delivery trucks, cans and elsewhere.

ASK - Plan, Deliver, Protect, Promote

Strategic Differentiation

The Coke bottle story reveals strategies that can be adopted today for differentiating products deliberately. In fact, an actionable framework can be followed by product innovation and brand managers at the outset of a new design project to ensure purposeful differentiation. It ideally includes planning for how the prospective product should differ from its competition, delivering differentiation as a part of the design process, protecting differentiators proactively by securing intellectual property rights — including complementary utility and/or design patent and trademark protections — and promoting design differentiation to build brand equity.

Plan: Coca-Cola challenged bottling companies across the U.S. to develop a distinguishable design. This was one of the earliest and best prototypes of what we now call a design brief. Coca-Cola identified the key objective — differentiation — and planned how the product should differ from the competition.

By deciding early in the design effort how a prospective design should best differ from rival offerings and what theme the design will communicate, product development managers and their teams can target the kind of design elements that can become powerful differentiators. They can also select design elements that can be protected by utility patents and those that can be separately protected by design patents, buying precious time for the product to develop secondary meaning to support trade dress and registered trademark rights.

Deliver: And Coca-Cola delivered! Inspired by ribbed cocoa beans, the design proposed by the Root Glass Company was distinctive enough to be recognized in the dark or while broken on the ground. Working within the parameters of a design challenge, today’s product development teams can and should deliberately generate design concepts that will promote differentiation.

In a typical product development process, early design concepts are vetted before selection from other design concepts for further development. Which design concept “wins” depends on factors ranging from functional performance and cost to beauty of form. From the perspective of IP protection, one critical factor in selecting a design is its ability to differentiate. Which design concept stands out from among prior and competing product offerings? And which design concept represents the greatest opportunity for strong and sustained IP rights? Intellectual property counsel can facilitate this delivery of differentiation, helping the product development team to execute strategies for delivering strong design differentiators.

Protect: By protecting the Coke bottle design with design patents and trademarks, Coca-Cola elevated its market differentiator from a first-to-market advantage to a longlasting and sustained commercial advantage. Even after 100 years, Coca-Cola can exclude its rivals from adopting bottle designs similar enough to deceive consumers.

Comprehensive protection often includes complementary intellectual property rights. Most consumer products embody features that perform a function and features that provide a pleasing form, whether in the product configuration itself or as part of its packaging. Acura is one of many companies that acknowledge the coexistence of form and function, advertising its TL as “Form, Breathing Down the Neck of Function.”

Product innovations can take many forms, including creative product and packaging designs, functional features of products and manufacturing processes, sourceidentifying symbols and valuable commercial secrets.

Various IP regimes are available for protecting these innovations: Utility patents and trade secrets can protect technology innovations; design patents provide a limited monopoly to the ornamental qualities of product offerings; and trade dress and trademark rights protect nonfunctional source identifiers.

There is, however, tension between form and function when embodied in a single product — form and function must be protected separately. Functional elements of a design — such as those essential to the use of the product or affecting its cost or quality — are not eligible for trademark protection. A utility patent, or advertising touting utilitarian advantages of a design feature, are considered evidence of functionality. For this reason, a thoughtful IP strategy should accompany a deliberate design process to ensure that the line between form and function is not inadvertently blurred.

Also, if care is taken, the exclusivity provided by design patents can actually buy time to establish secondary meaning in the subject design, thus achieving exclusivity for a potentially infinite amount of time via trade dress and trademark rights. What could be considered the “holy grail” of IP protection, trade dress is capable of enduring indefinitely to protect non-functional and distinctive design elements that serve as source identifiers. Examples illustrating the power and breadth of significant design elements include color elements like the robin’s-egg blue of Tiffany & Co., patterns like Levi Strauss’ iconic jean pocket stitching and product configurations like the Weber barbecue grill.

Promote: When it comes to promotion, Coca-Cola is king. The consistent use and emphasis of its bottle design, including the preservation of the overall look and feel of the original contour glass bottle in newer plastic and aluminum bottles, ensures continued rights in its iconic shape.

Building on their work as collaborating members of the product development team, designers, marketing professionals and intellectual property counsel must coordinate their efforts to promote long-term design differentiation. This requires agreement on (and communication of) a consistent, coherent message to the benefit of protected design elements. The goal is an established nexus between a design element and the consumer, and a unified effort of the design and marketing and legal disciplines is necessary to achieve that goal.

The “plan-deliver-protect-promote” framework prompts design teams to collaborate with IP counsel as they differentiate deliberately. It helps all those involved in product innovation to answer important questions and to complete defined milestones throughout the design process. Illustrated as a linear process, this framework for deliberate differentiation ideally follows a sequential path.

Differentiation By Design

Coca-Cola is by no means the only example of deliberate differentiation. Spanning the life of the Coke bottle over the past century, product design has, in fact, evolved from an esoteric discipline appreciated by a select few to a business imperative discussed in the boardroom. Hershey’s Kisses candies illustrate a deliberate differentiation strategy dating back to 1921.

Over the years, Hershey used look-for advertising, registered its product configuration and strategically registered twodimensional marks to reinforce consumer recognition of its threedimensional product shape. To introduce a prominent differentiator, for example, Hershey extended an “identification tag” or “plume” from the top of its wrapper in 1921. To reinforce rights in this differentiator, Hershey’s ads notified consumers that “The genuine Hershey’s Kisses contain the identification tag ‘Hershey’s.’” Hershey’s trademark registrations reveal a strategy like Coca-Cola’s — aimed to reinforce differentiation — as if they were working from the same playbook.

Other examples of product differentiation include Honeywell’s iconic dome-shaped thermostat, the distinctive Absolut vodka bottle and the famous flip-top lighters of Zippo. They each provide strong inspiration for deliberate and protectable differentiation.

Differentiating Deliberately

To succeed in the modern marketplace, firms face a growing imperative to offer unique products, protect that uniqueness and sustain the competitive advantage that uniqueness confers. Product development managers, working in conjunction with IP counsel, can and should develop strategies to protect the differentiating elements of their design innovations. And they have a growing toolbox of systems to support them.

Principles of design thinking have helped to integrate business considerations, such as the importance of sustained design differentiation, into design efforts, and the team-oriented structures of today’s organizations provide unique opportunities to execute businessoriented design strategies. Also, the actions required to implement design differentiation strategies should be performed at strategic junctures throughout the product development process; specifically, by incorporating predefined milestones into the process. IP counsel can help ensure that appropriate actions are completed before a staged product development process graduates to the next stage.

Product innovators and their legal teams should therefore execute strategies — such as by following the “plan-deliver-protect-promote” framework — that are designed to differentiate and protect their product offerings and should do so deliberately. That’s what CocaCola did in creating, protecting and promoting its bottle design, now universally recognized as a powerful source identifier (even in the dark).

Joshua L. Cohen founded and chairs RatnerPrestia’s Design Rights Group, which protects product designs ranging from luxury automobiles and timepieces to consumer electronics for some of the world's leading designforward companies. He has been practicing intellectual property law since 1992, and he is president of the Philadelphia PDMA Chapter.