Storm in a contour bottle? The Coca-Cola Company v Pepsico Inc & Ors VID 876/2010

The Coca Cola Company ('Coca Cola') has recently brought proceedings against Pepsico Inc, its Australian holding company Pepsico Australia Holdings Pty Ltd and Schweppes Australia Pty Ltd as the manufacturer and distributor of Pepsi and Pepsi Max ('the Respondents'). In the Statement of Claim dated 14 October 2010, Coca Cola alleges the Respondents have been selling Pepsi and Pepsi Max products in glass bottles that have the same characteristic shape and silhouette as the Coca Cola 'Contour Bottle', infringing their intellectual property rights. The case raises a number of interesting issues concerning the often fraught area of shape marks, some of which will be raised here.