Do you like coke?

Every once in a while it's nice to have a little. As you get older though you really need to be careful with it. Lots of calories. Anyway...

In 1970, a Brooklyn poster company called Gemini Rising took Coca-Cola's iconic advertisement layout with the fancy script that's white on red that everyone knows and modified it from Enjoy Coca-Cola to Enjoy Cocaine.

They also swapped "Trade-Mark ®" for "Raid-Mark ®." Which is actually a good way of thinking of this problem. In trademark law you can't just casually cross a line with consumer confusion even in the early 1970s. That line is a problem and if your friends and family can't tell you that you have a problem then a judge will.

They sold over 100,000 copies for 2 dollars each before Coca-Cola sued. The case is Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972), and reading it in 2026 is like watching a federal court articulate something I find myself explaining to clients on a regular basis.

Do not confuse consumers

Gemini Rising's argument was simple: nobody actually thinks Coca-Cola is selling cocaine posters. The substitution is obvious. It's a joke. What they intended didn't matter. The court cares what happened. Actual consumer confusion is a big deal.

Coca-Cola submitted affidavits showing it had received communications from across the country about the poster. In Pittsburgh, a mother of four saw the poster at a mall, found it offensive, and called the local Coca-Cola bottler to complain. An Action Line reporter at WIIC-TV picked up the story. The station's news director received calls from viewers—all of whom attributed the poster to Coca-Cola and voiced disapproval. Some threatened a group boycott.

And the standard the court applied wasn't the sophisticated consumer. It was "the ordinary purchaser" — described, in language borrowed from a 1910 Second Circuit opinion, as a "vast multitude which includes the ignorant, the unthinking and the credulous, who, in making purchases, do not stop to analyse, but are governed by appearances and general impressions." By that standard, the confusion showing was overwhelming.

Even though these arguments go way back we still see them all the time in cases like PISSTERINE where Johnson & Johnson is stuck arguing that their consumers would mistake a bottle of literal piss for their product because the names are similar. (And they make sense to me. Except maybe in PISSTERINE where it is truly hard to imagine the consumer that fills their mouth with urine thinking it's mouthwash but in the age of do-your-own-research maybe there's something to that.)

Raid mark is kind of a useful term

People screw this up a lot and "raid mark" may be a somewhat useful way for a non-attorney to figure out if they're doing something wrong. Someone comes up with a clever brand name that riffs on another mark. They think because they're being kind of funny or clever they can effectively raid the other mark to make money. If consumers are confused and you're making money off that confusion, courts don't care how clever you think you are. If you are thinking of raiding someone else's mark then you should really stop and think about whether what you're doing is a good idea.

When Gemini Rising learned Coca-Cola was about to sue, they filed a revised version of the poster with the Copyright Office. The revision changed "Trade-Mark" to "Raid-Mark."

They thought this was clever. The court thought it was a confession.

Judge Neaher called the change "a clear indication of defendant's predatory intent, however humorous defendant considers it."

If your parody requires you to raid consumer recognition of the original mark where they think they might be the same source, then you've just built your business on someone else's trademark — it's time for an intervention.

An amusing footnote about cocaine.

Judge Neaher remarked in the opinion that cocaine is a felony-level narcotic and found that to "associate such a noxious substance as cocaine with plaintiff's wholesome beverage" would cause damage to sweet innocent Coca-Cola.

Then in footnote 7, he acknowledged that the name "Coca-Cola" is derived from the Andean coca leaf plant. Which, as he noted, "is the source of cocaine" citing the Supreme Court's 1920 decision in Coca-Cola Co. v. Koke Co. for the proposition that "there is no cocaine in Coca-Cola."

Coca-Cola's original 1886 formula used coca leaf extract as an ingredient. It obviously doesn't contain pharmacologically active cocaine anymore and spent decades building what became the most recognizable brand on earth without having to use the devil's dandruff.

It's hard not to be amused by having to talk about how innocent Coca-Cola is and then footnote that "yeah, this used to have drugs in it." The finding is correct here but having to acknowledge the basis for the joke here is pretty entertaining.

Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972). This is the second installment of Throwback Trademark Cases. Previously: Listerine v. Pissterine.

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