Polar Opposites? How Pepsi Can Use a Polar Bear Without Getting Frostbitten by Trademark Law?
When you think of polar bears in soda advertising, one company likely comes to mind: Coca-Cola. For years, Coke’s animated arctic ambassadors have become a staple, wholesome, nostalgic, and instantly recognizable. So imagine a collective double take when Pepsi co. aired a recent Super Bowl commercial featuring a polar bear. This one in particular participates in a blindfolded cola taste test, confidently selects his favorite, and then discovers its Pepsi, not Coke. Following that the bear has an existential crisis, therapy session to process the revelation, and ultimately a family wide embrace of Pepsi.
It’s bold. It’s funny. It’s competitive. Is it legal?
You Can’t Trademark a Species
First, the foundational principle: trademark law does not protect ideas, it protects source identifiers.
A trademark is a word, phrase, symbol, or design that identifies and distinguishes the source of goods. The key legal test in any trademark dispute is likelihood of confusion.
The question is, would an ordinary consumer likely believe the second brand is affiliated with, sponsored by, or approved by the first? So, does Pepsi’s commercial make consumers think it’s actually Coke? Does it copy Coke’s specific bear character, animation style, or branding elements in a way that causes confusion?
Expression vs. Idea: The IP Line in the Snow
Intellectual property law draws a critical distinction between ideas and expression. The idea of a polar is free for anyone to use. However, Coke’s specific bear designs, animation style, tone, and branding are all protected.
Unless Pepsi copied Coke’s exact character design or distinctive visual identity, simply featuring a bear in a comedic, satirical storyline isn’t automatically problematic.
What About Trade Dress?
Trade dress protects the overall “look and feel” of a product or advertising presentation when that look functions as a brand identifier. It can include color schemes, packaging, layouts, or even certain consistent advertising styles. In most introductory intellectual property courses, the classic example used to teach trade dress is the iconic bottle from the Coca-Cola company. Even without the label, consumers can recognize that distinctive curved glass silhouette.
However, satire, parody, or competitive commentary, especially when clearly branded, typically falls on much safer ground.
Competitive Advertising Isn’t New
The rivalry between The Coca-Cola Company and PepsiCo has always included playful jabs. Comparative advertising, where one brand positions itself against another, is not only legal, its common. In fact, U.S. advertising law generally permits comparative claims as long as they are not false or misleading.
Pepsi doesn’t disguise itself as Coke, it leans into the rivalry. Whether Pepsi is better than Coke is a personal preference, not a matter of fact. The humor depends on consumers recognizing the reference. Ironically, that recognition can actually reduce confusion rather than increase it. The therapy subplot? That’s just marketing flair, not trademark infringement.
The Real Lesson for Business Owners
You cannot claim ownership over: animals, general themes, broad emotional concepts, or an entire season like winter.
You can protect: distinctive logos, specific character designs, unique visual elements tied to your brand, and consistent source identifying features.
If your brand mascot is central to your identity, protecting the design, registering trademarks, and maintaining consistent use is critical.
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