As 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—and pay homage to—Coca-Cola’s achievement. The Coke success story goes well beyond good fortune or serendipity in the marketplace—it actually represents a case study in deliberate differentiation. With its unique design, the Coke bottle stood out from among other colas and helped consumers to find—and bond with—the real thing.
So, just how did the Coke bottle become such a design icon? The Coke bottle story—as told below—reveals strategies that can be used today for differentiating products deliberately. It also confirms that product innovators, working together with counsel, can do more than merely hope for success in the marketplace. If companies plan for and purposefully 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, Coca-Cola issued a nationwide directive to designers asking them to develop a bottle capable of such distinction. This initiative commenced in 1912, when Coca-Cola first sought to develop a “distinctive package” for its cola product.
Harold Hirsch, Coca-Cola’s lead attorney, was tasked with developing a strategy for securing a special bottle design. In response, Hirsch asked Coca-Cola’s bottlers to unite behind a distinctive design. He invited them to look beyond their immediate expense when converting to a new design and adopt a vision in which “Coca-Cola will remain the National drink to the end of time,” and he specifically asked glass companies across the U.S. to develop a “bottle so distinct that you would recognize it by feel in the dark or lying broken on the ground.” With that, the design competition ensued.
Indiana’s Root Glass Company took on the design challenge and proposed a bottle inspired by ribbed cocoa beans, and its design was the clear winner. In 1916, Coca-Cola concluded that Root Glass’s cocoa bean-inspired design best met its design requirement of distinctiveness. We can all recognize it by feel in the dark or lying broken on the ground—just try it and you’ll see.
In order 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. U.S. Design Patent No. 48,160 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, emphasizing the famed “Coca-Cola” script with the bottle or associating it with design elements symbolizing “green initiatives” for recyclable and plant-based, rather than petroleum-based, materials.
And 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, on cans, and elsewhere.
The Coke bottle story reveals strategies that can be adopted today for differentiating products deliberately. In fact, an actionable framework can be followed by design 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 glass companies across the U.S. to develop a bottle distinguishable “by feel in the dark” or “broken on the ground.” 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. As it turns out, and as Coca-Cola predicted, product packaging is a smart choice for differentiation. Not only is it a first and prominent connection to consumers, but (as explained below) packaging does not necessarily require secondary meaning for protection as a source identifier.
By deciding early in the design effort how a prospective design should best differ from rival offerings and what theme the design will communicate, design managers and their design 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 achieve success and for the design to develop secondary meaning to support trade dress and registered trademark rights.
Coca-Cola set forth a plan to differentiate its cola and deliberately selected the bottle’s design as a means to do so. Coca-Cola wanted consumers to instantly recognize (and choose) the real thing.
DELIVER – And Coca-Cola delivered! Inspired by ribbed cocoa beans, the design proposed by the Root Glass Company was distinctive enough to be recognized even in the dark or broken on the ground. Working within the parameters of a design challenge, today’s design teams can and should deliberately generate design concepts that will promote differentiation.
In a typical product development process, early design concepts are vetted before being selected from among 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 that design’s 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 design team to execute strategies for delivering strong design differentiators. Coca-Cola presumably recognized that Root Glass’s cocoa bean-inspired design represented the greatest opportunity for distinctiveness and sustained IP protections.
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 long-lasting and sustainable 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. Automobiles, for example, have been advertised as “The Fusion of Design & Technology” (Cadillac’s Escalade) or even “Form, Breathing Down the Neck of Function” (Acura’s TL). Form and function therefore typically coexist in product designs.
Design innovations can take many forms, including creative product and packaging designs, functional features of products and manufacturing processes, graphics, source-identifying symbols, artistic and literary works, and valuable commercial secrets. Various regimes for protecting these innovations are available. Utility patents and trade secrets can protect technology innovations and slow the activities of competitors—at least until they find a way to act outside the scope of the patents or until technological advances render the innovations obsolete. Design patents provide a limited monopoly to the ornamental qualities of product offerings. And trade dress and trademark rights protect non-functional source identifiers.
There is, however, tension between form and function when embodied in a single product—form and function must be protected separately despite their marriage in consumer products. Functional elements of a design are not eligible for trademark protection, because such protection “is the province of patent law.” In general “a product feature is functional … if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.” 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 to the detriment of long-term protection. 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., AstraZeneca’s purple pill Nexium, and UPS brown. They also include patterns ranging from Levi Strauss’ iconic jean pocket stitching to the rooster-tail of water generated by Yamaha’s Wave Runner watercraft. Other examples include product configurations like the WEBER barbeque grill and LIFE SAVERS candies. Even scents such as the cherry scent of Manhattan Oil’s synthetic lubricant illustrate the wide range of protected design differentiators.
Coca-Cola protected its bottle using various forms of IP rights. Such a “cocktail” of IP rights can protect design differentiators comprehensively.
PROMOTE – When it comes to promotion, Coca-Cola is king. The consistent use and emphasis of the bottle, including the preservation of the overall look and feel of the original contour glass bottle in newer plastic and aluminum bottles, is designed to ensure continued rights in its iconic shape.
Building on their work as collaborating members of the design team, designers and 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 and coherent message as 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 design 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 as shown below.
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. Because of the importance of design to consumers, there are numerous case studies of time-tested designs that illustrate design differentiation at work in the marketplace.
HERSHEY’S KISSES candies illustrate a deliberate differentiation strategy dating back to 1921. Over the years, Hershey has employed look-for advertising, registered its product configuration, and strategically used and registered two-dimensional marks to reinforce consumer recognition of its three-dimensional product shape. Hershey now owns over twenty U.S. trademark registrations for design marks, depicting various configurations of HERSHEY’S KISSES candies. To introduce a prominent differentiator, 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 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.
Honeywell’s iconic dome-shaped thermostat—designed by Henry Dreyfuss and introduced in 1953 as the T-86 “Round” thermostat—is found in many of our homes and offices. Honeywell had been awarded a design patent for the thermostat’s cover and at least one utility patent for its inner workings. Despite Honeywell’s utility patent protection, the cover design was found to be not functional—Honeywell’s literature did not tout the rounded design as a utilitarian advantage, but rather emphasized the decorative quality of the thermostat’s cover; Honeywell’s utility patents did not propose any utilitarian value of the rounded shape of the thermostat’s cover, alternative designs were available to competitors, and Honeywell’s cover design was neither simpler nor cheaper to manufacture. Honeywell was ultimately awarded Registration No. 1,622,108 in 1990 for the design of “a thermostat cover that is circular and rounded in shape,” which remains in force today.
Other examples of product differentiation range from the distinctive ABSOLUT vodka bottle to the lighters of Zippo. They each provide strong inspiration for deliberate and protectable differentiation.
To succeed in the modern marketplace, firms face a growing pressure—or even imperative—to offer unique products, protect that uniqueness, and sustain the competitive advantage that uniqueness confers. That way, they can seize the opportunity to extend design’s first-to-market competitive edge into robust, long-lasting commercial assets
Design 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 business-oriented design strategies. Also, the actions required to implement design differentiation strategies should be performed at strategic junctures throughout the design process; specifically, by incorporating predefined milestones into the design process, IP counsel can help ensure that appropriate actions are completed before the design 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 Coca-Cola did in creating, protecting and promoting its bottle design, now universally recognized as a powerful source identifier (even in the dark).
Note: An earlier version of this article entitled “Deliberate Differentiation: Strategies for Creating and Protecting Iconic Designs (How Planning Trumps Serendipity in Pursuit of The Real Thing and Other True-Life Stories of Design Protection),” authored by Joshua L. Cohen and Rex A. Donnelly, was published in the November-December, 2015 (Vol. 105, No. 6) issue of the International Trademark Association’s Trademark Reporter®. This topic was also presented by Joshua L. Cohen at the Tsinghua International Design Management Symposium, held in 2009 at the Academy of Arts & Design of Beijing’s prestigious Tsinghua University, and was subsequently published by Mr. Cohen in that Symposium’s peer-reviewed DESIGN2BUSINESS Proceedings.