NOTE: This disposition is nonprecedential.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

Case: 19-2088 Document: 61 Page: 1 Filed: 08/03/2020
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 consolidated opposition to sixteen trademarks proposed for registration 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 Decision”). Because Royal Crown received the only relief it requested when Coca-Cola disclaimed the term “ZERO” in 

the applications at issue, Royal Crown’s appeal is dismissed as moot. 

BACKGROUND

Royal Crown and Coca-Cola are competitors in the beverage 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 oppositions, 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

Case: 19-2088 Document: 61 Page: 2 Filed: 08/03/2020
ROYAL CROWN COMPANY, INC. v. COCA-COLA COMPANY 3

respective oppositions, later consolidated before the Board,

are listed below. 

Application 

No.

Opposition 

No.

Mark

78580598 91178927 COCA-COLA ZERO

78316078 91180771 SPRITE ZERO

78664176 91180772 COKE ZERO

77175066

91183482

COKE CHERRY ZERO

77175127 CHERRY COCA-COLA 

ZERO

77176108 COCA-COLA VANILLA 

ZERO

77176127 CHERRY COKE ZERO

77176279 COCA-COLA CHERRY 

ZERO

77097644 PIBB ZERO

76674382

91185755

COKE ZERO ENERGY

76674383 COKE ZERO BOLD

77176099 VANILLA COKE ZERO

77257653

91186579

VANILLA COCA-COLA 

ZERO

77309752 POWERADE ZERO

78620677 FANTA ZERO

78698990 91190658 VAULT ZERO

Board Decision, slip op. at 3–4. In its consolidated opposition, 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 

Case: 19-2088 Document: 61 Page: 3 Filed: 08/03/2020
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 registered 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 before 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, accordingly, 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 procedurally 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 disclaimed 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.

Case: 19-2088 Document: 61 Page: 4 Filed: 08/03/2020
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 Director 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. Bridgestone/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 discretion.” 5 U.S.C. § 706(2)(A); Ultratec, Inc. v. CaptionCall, 

LLC, 872 F.3d 1267, 1271–72 (Fed. Cir. 2017) (citing Redline Detection, LLC v. Star Envirotech, Inc., 811 F.3d 435, 

442 (Fed. Cir. 2015)). 

Royal Crown raises three challenges to the Board’s decision. 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. Second, it argues that, by simply entering Coca-Cola’s disclaimer, 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 CocaCola’s disclaimer mooted this appeal because Coca-Cola 

may file new applications for ZERO-inclusive marks or assert such scope for the instant proposed marks in future 

litigation. 

Case: 19-2088 Document: 61 Page: 5 Filed: 08/03/2020
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 maintains 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 sufficiently 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 consent 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 administrative economy and vary depending on the case. For example, 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.

Case: 19-2088 Document: 61 Page: 6 Filed: 08/03/2020
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 (requesting 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] without disclaimer of the term” ZERO). Entry of Coca-Cola’s 

disclaimer entirely fulfilled Royal Crown’s request for relief, rendering its opposition superfluous, as the Board explained in its decision. Board Decision, slip op. at 3. 

Furthermore, the appeal is moot because the sole remedy 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 dismissed 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 because 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 apply for other ZERO-inclusive marks. 

But litigation is conducted for the purpose of obtaining 

relief, not an advisory opinion. While a Board opinion finding 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 

Case: 19-2088 Document: 61 Page: 7 Filed: 08/03/2020
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 argument that a potential preclusion defense in a hypothetical 

future case prevents mootness). 

Royal Crown has obtained what it requested in its opposition, disclaimer of the term ZERO in each of the trademark 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

Case: 19-2088 Document: 61 Page: 8 Filed: 08/03/2020