Case: 19-2088   Document: 61     Page: 1   Filed: 08/03/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

        ROYAL CROWN COMPANY, INC., DR
            PEPPER/SEVEN UP, INC.,
                  Appellants

                            v.

            THE COCA-COLA COMPANY,
                    Appellee

     ANDREI IANCU, UNDER SECRETARY OF
   COMMERCE FOR INTELLECTUAL PROPERTY
    AND DIRECTOR OF THE UNITED STATES
      PATENT AND TRADEMARK OFFICE,
                   Intervenor
             ______________________

                       2019-2088
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Trademark Trial and Appeal Board in Nos.
 91178927, 91180771, 91180772, 91183482, 91185755,
 91186579, 91190658.
                  ______________________

                Decided: August 3, 2020
                ______________________

     LAURA POPP-ROSENBERG, Fross Zelnick Lehrman &
 Zissu, P.C., New York, NY, for appellants.    Also
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2          ROYAL CROWN COMPANY, INC.   v. COCA-COLA COMPANY



 represented by BARBARA A. SOLOMON.

    BRUCE WILLIAM BABER, King & Spalding LLP, Atlanta,
 GA, for appellee.

     CHRISTINA J. HIEBER, Office of the Solicitor, United
 States Patent and Trademark Office, Alexandria, VA, for
 intervenor. Also represented by THOMAS L. CASAGRANDE,
 THOMAS W. KRAUSE, FARHEENA YASMEEN RASHEED,
 JENNIFER E. MARINO.
                 ______________________

    Before NEWMAN, LOURIE, and O’MALLEY, Circuit Judges.
 LOURIE, Circuit Judge.
     Royal Crown Company, Inc., and Dr. Pepper/Seven-Up,
 Inc. (collectively, “Royal Crown”), appeal from a decision of
 the Trademark Trial and Appeal Board of the U.S. Patent
 and Trademark Office, dismissing Royal Crown’s consoli-
 dated opposition to sixteen trademarks proposed for regis-
 tration by Coca-Cola Company (“Coca-Cola”). See Royal
 Crown Co. v. Coca-Cola Co., Opposition Nos. 91178927
 (Parent Case), 91180771, 91180772, 91183482, 91185755,
 91186579, 91190658 (TTAB May 3, 2019) (“Board Deci-
 sion”). Because Royal Crown received the only relief it re-
 quested when Coca-Cola disclaimed the term “ZERO” in
 the applications at issue, Royal Crown’s appeal is dis-
 missed as moot.
                        BACKGROUND
      Royal Crown and Coca-Cola are competitors in the bev-
 erage market. Coca-Cola filed the sixteen applications at
 issue to register marks appending the term ZERO to some
 of its existing beverage brands. Royal Crown filed opposi-
 tions, claiming that each of the marks is generic or merely
 descriptive of the zero-calorie attributes of the beverages.
 J.A. 120–28. Coca-Cola’s applications and Royal Crown’s
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 ROYAL CROWN COMPANY, INC.   v. COCA-COLA COMPANY          3



 respective oppositions, later consolidated before the Board,
 are listed below.
  Application     Opposition                Mark
      No.             No.
  78580598        91178927        COCA-COLA ZERO
  78316078        91180771        SPRITE ZERO
  78664176        91180772        COKE ZERO
  77175066                        COKE CHERRY ZERO
  77175127                        CHERRY COCA-COLA
                                  ZERO
  77176108                        COCA-COLA VANILLA
                  91183482        ZERO
  77176127                        CHERRY COKE ZERO
  77176279                        COCA-COLA CHERRY
                                  ZERO
  77097644                        PIBB ZERO
  76674382                        COKE ZERO ENERGY
  76674383        91185755        COKE ZERO BOLD
  77176099                        VANILLA COKE ZERO
  77257653                        VANILLA COCA-COLA
                                  ZERO
  77309752        91186579        POWERADE ZERO
  78620677                        FANTA ZERO
  78698990        91190658        VAULT ZERO
 Board Decision, slip op. at 3–4. In its consolidated opposi-
 tion, Royal Crown argued that each of the registrations
 must be denied “absent the entry of a disclaimer of the term
 ‘zero.’” J.A. 128.
     In relevant part, the Board dismissed Royal Crown’s
 oppositions. Royal Crown Co. v. Coca-Cola Co., Opposition
 No. 91178927 (Parent Case), 2016 WL 9227936, at *1 (May
 23, 2016). 1 It found that Royal Crown failed to show that

     1   The Board also dismissed Coca-Cola’s opposition to
 two of Royal Crown’s proposed marks—DIET RITE PURE
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4          ROYAL CROWN COMPANY, INC.   v. COCA-COLA COMPANY



 ZERO is generic for zero-calorie products in the genus of
 soft drinks, sports drinks, and energy drinks, id. at *12,
 and, moreover, that Coca-Cola proved that the term ZERO
 has acquired distinctiveness for soft drinks and sports
 drinks, though not for energy drinks, id. at *15. Thus, the
 Board held that Coca-Cola’s applications could be regis-
 tered even absent a disclaimer of the term ZERO.
      Royal Crown appealed that decision to this court. We
 vacated the decision of the Board for applying the wrong
 legal standard for genericness of the term ZERO and for
 failing to make a finding on the term’s descriptiveness be-
 fore addressing acquired distinctiveness. Royal Crown Co.,
 Inc. v. Coca-Cola Co., 892 F.3d 1358, 1366 (Fed. Cir. 2018).
 We then remanded the case for the Board to address these
 issues under the correct standards. Id. (“On remand, ac-
 cordingly, the Board must examine whether the term
 ZERO, when appended to a beverage mark, refers to a key
 aspect of the genus.”); id. at 1369 (requiring the Board to
 “make an express finding regarding the degree of the
 mark’s descriptiveness on the scale ranging from generic to
 merely descriptive”).
     On remand, the Board requested briefing to frame the
 issues for decision. Instead, Coca-Cola filed a motion to
 amend each of its applications to disclaim the term ZERO.
 Royal Crown protested that the disclaimer was both proce-
 durally improper and not case-dispositive. But the Board,
 noting that the disclaimer was the only relief requested by
 Royal Crown, granted Coca-Cola’s motion, entered the


 ZERO and PURE ZERO—for which Royal Crown had dis-
 claimed the term ZERO. 2016 WL 9227936, at *18. The
 Board sustained Royal Crown’s opposition to another of
 Coca-Cola’s proposed marks, FULL THROTTLE ZERO,
 which is no longer at issue because Coca-Cola assigned its
 interest to a third party that elected not to appeal from the
 Board’s decision, 892 F.3d at 1362 n.2.
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 ROYAL CROWN COMPANY, INC.   v. COCA-COLA COMPANY            5



 disclaimer in each application, and dismissed Royal
 Crown’s consolidated opposition. Board Decision, slip op.
 at 3–4.
     Royal Crown then filed the instant appeal. The Direc-
 tor of the PTO filed a motion to intervene, which this court
 granted.
                         DISCUSSION
     We review the Board’s decision in accordance with the
 standards of the Administrative Procedure Act. Bridge-
 stone/Firestone Research, Inc. v. Auto. Club De L'Quest De
 La France, 245 F.3d 1359, 1361 (Fed. Cir. 2001) (citing
 Dickinson v. Zurko, 527 U.S. 150, 152 (1999)). We evaluate
 the Board’s legal determinations de novo and its factual
 findings for substantial evidence. Royal Crown, 892 F.3d
 at 1364–65 (citations omitted). The Board’s application of
 its own trial rules is reviewed for a determination of
 whether it is “arbitrary, capricious, [or] an abuse of discre-
 tion.” 5 U.S.C. § 706(2)(A); Ultratec, Inc. v. CaptionCall,
 LLC, 872 F.3d 1267, 1271–72 (Fed. Cir. 2017) (citing Red-
 line Detection, LLC v. Star Envirotech, Inc., 811 F.3d 435,
 442 (Fed. Cir. 2015)).
      Royal Crown raises three challenges to the Board’s de-
 cision. First, it claims that granting Coca-Cola’s post-trial,
 unconsented-to motion was procedurally improper and
 thus arbitrary, capricious, and an abuse of discretion. Sec-
 ond, it argues that, by simply entering Coca-Cola’s dis-
 claimer, the Board shirked its obligation to render a
 reasoned decision under the APA and deprived Royal
 Crown and this court of a decision on the merits. Finally,
 and more substantively, Royal Crown denies that Coca-
 Cola’s disclaimer mooted this appeal because Coca-Cola
 may file new applications for ZERO-inclusive marks or as-
 sert such scope for the instant proposed marks in future
 litigation.
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6          ROYAL CROWN COMPANY, INC.    v. COCA-COLA COMPANY



      Coca-Cola responds that this appeal is moot because
 the Board’s entry of Coca-Cola’s disclaimers granted Royal
 Crown all the relief it had requested. Coca-Cola also main-
 tains that the Board is permitted to grant an unconsented
 motion to amend the application under 37 C.F.R.
 § 2.133(a), and that the basis of the Board’s decision is suf-
 ficiently clear under the APA. The Director adds that
 Royal Crown never opposed registration of the marks per
 se—only registration absent a disclaimer of the term
 ZERO—and thus it has received all of the relief it asked
 for.
     We agree with Coca-Cola and the Director. The Board
 did not abuse its discretion in granting Coca-Cola’s motion,
 and its entry of the disclaimer renders this appeal moot.
     As Coca-Cola and the Director point out, § 2.133(a) does
 not allow amendments or disclaimers “except with the con-
 sent of the other party or parties and the approval of the
 [Board], or upon motion granted by the Board.” Royal
 Crown tries to show that the Board has interpreted this
 regulation to forbid unconsented motions after trial, but
 the Board decisions it cites instead tend to illustrate that
 the Board exercises its discretion to grant motions—for all
 kinds of amendments—in the appropriate circumstances,
 which usually align with general principles of administra-
 tive economy and vary depending on the case. For exam-
 ple, in Zachry Infrastructure, LLC v. Am. Infrastructure,
 Inc., 101 U.S.P.Q.2d 1249 (TTAB 2011), cited by Royal
 Crown, the Board simply invoked its discretion to defer
 consideration of the applicant’s motion to seek registration
 on the Supplemental Register—an action which, unlike
 disclaimer, would not have met the opposer’s request for
 relief—until genericness could be properly briefed. Id. at
 1254. Thus, neither Zachry nor any other decision cited by
 Royal Crown stands for the improbable notion that the
 Board is powerless to grant a motion to enter a disclaimer
 granting all the relief an opposer seeks.
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 ROYAL CROWN COMPANY, INC.   v. COCA-COLA COMPANY           7



      Coca-Cola’s disclaimer grants Royal Crown what it
 sought in its opposition. Throughout this case, Royal
 Crown requested only that the Board require a disclaimer
 of the term ZERO before registering the marks at issue.
 Royal Crown, 892 F.3d at 1365 (“The only relief Royal
 Crown seeks in its oppositions to [Coca-Cola’s] applications
 is that [Coca-Cola] be required to disclaim the term ZERO.
 Royal Crown does not argue that, if [Coca-Cola] disclaims
 ZERO, the marks should not be allowed.”); J.A. 127–28 (re-
 questing that registration of the instant marks be “denied
 absent the entry of a disclaimer of the term ‘zero’”); J.A.
 225 (arguing that the Board, on remand, should “refuse
 registration of the Challenged Marks to [Coca-Cola] with-
 out disclaimer of the term” ZERO). Entry of Coca-Cola’s
 disclaimer entirely fulfilled Royal Crown’s request for re-
 lief, rendering its opposition superfluous, as the Board ex-
 plained in its decision. Board Decision, slip op. at 3.
     Furthermore, the appeal is moot because the sole rem-
 edy Royal Crown originally requested is now beyond the
 power of this court to grant. See Calderon v. Moore, 518
 U.S. 149, 150 (1996) (holding that an appeal should be dis-
 missed as moot when “a court of appeals cannot grant any
 effectual relief whatever”); North Carolina v. Rice, 404 U.S.
 244, 246 (1971) (“Mootness is a jurisdictional question be-
 cause the Court is not empowered to decide moot questions
 or abstract propositions.” (citations omitted)).
     Royal Crown argues that its appeal is not moot because
 Coca-Cola never conceded that the term ZERO is generic
 or merely descriptive in the relevant product genera, nor
 did the Board so hold, and Coca-Cola may in the future ap-
 ply for other ZERO-inclusive marks.
     But litigation is conducted for the purpose of obtaining
 relief, not an advisory opinion. While a Board opinion find-
 ing Coca-Cola’s ZERO-inclusive marks generic or merely
 descriptive in the relevant product genera may have been
 useful for Royal Crown in the future, such an interest is too
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8          ROYAL CROWN COMPANY, INC.   v. COCA-COLA COMPANY



 speculative to invoke the jurisdiction of this court. See
 Sanofi-Aventis U.S., LLC v. Dr. Reddy's Labs., Inc., 933
 F.3d 1367, 1373–74 (Fed. Cir. 2019) (rejecting the argu-
 ment that a potential preclusion defense in a hypothetical
 future case prevents mootness).
     Royal Crown has obtained what it requested in its op-
 position, disclaimer of the term ZERO in each of the trade-
 mark applications at issue. The Board’s decision reflects
 entry of those disclaimers. Accordingly, there is no case or
 controversy for this court to decide.
                        CONCLUSION
     We have considered Royal Crown’s further arguments
 but find them unpersuasive. For the foregoing reasons,
 Royal Crown’s appeal is
                       DISMISSED
