Can You Trademark a Potato? Take Our Food-Branding Quiz.; The New York Times, June 4, 2024

Nick Robins-Early , The New York Times; Can You Trademark a Potato? Take Our Food-Branding Quiz.

America is saturated with food trademarks. The Cronut? Trademarked. Pop-Tarts? Trademarked. Even grapes that taste like cotton candy, and the mash-up of gai lan and broccoli called Broccolini are legally protected.

Yet the celebrity chef David Chang was widely criticized this spring for pressuring small manufacturers to stop using the term “chile crunch.” His business holds the trademark for the spicy condiment, but many people wondered: How can a name common to so many cuisines be owned by one company?

The answers to that question and many more lie in the byzantine deliberations of the U.S. Patent and Trademark Office, in Alexandria, Va. It has registered more than 200,000 food and agricultural trademarks, which means that the name or product — the brand, essentially — is unique enough that no one else is allowed to use it for a similar item. (Recipes can’t be trademarked, but some can be ruled trade secrets, like the formula for Dr Pepper or KFC’s 11 herbs and spices.)

The process of deciding what merits a trademark can be downright Talmudic, starting with the hierarchy of trademark types. The easiest to secure and protect are the completely made-up words that the office calls “fanciful,” like Häagen-Dazs. Next are “arbitrary" names — real words that have nothing to do with the products they identify, like Apple for computers. Harder-to-trademark categories include “suggestive” names, which contain a hint of what the product is, like SweeTarts, and plainly “descriptive” ones, like All-Bran.

There are precise legal requirements to meet, but also room for subjective interpretation. Public perception is the barometer. If a name seems confusing, misleading or too common, it won’t get a trademark. “Our job is to figure out what the American consumer is thinking,” said Amy Cotton, the deputy commissioner for trademark examination.

As a consumer, how good are you at gauging what deserves a trademark?"

Surge in Trademark Fraud Scams Overwhelms Regulators, Applicants; Bloomberg Law, April 19, 2023

Riddhi Setty, Bloomberg Law ; Surge in Trademark Fraud Scams Overwhelms Regulators, Applicants

"An unprecedented surge in applications for US trademarks has unleashed an equally extraordinary rise in fraud schemes targeting applicants, leaving investigators struggling to keep up."

Hakuna Matata™? Can Disney Actually Trademark That?; The New York Times, December 20, 2018

Kimiko de Freytas-Tamura, The New York Times; Hakuna Matata™? Can Disney Actually Trademark That?

"Trademark experts said the talk of colonialism and robbery was overwrought, and that the trademarking of phrases, particularly those from other languages, is commonplace.

“People talk about appropriation,” said Phillip Johnson, a professor of commercial law at Cardiff Law School in Wales and a specialist on intellectual property law, “but a trademark is all about appropriation of language within a narrow commercial sphere, outside that space people are free to use the language as they wish.”

“What’s difficult about this case is whether it was a sensible commercial decision for the Disney brand, rather than whether, legally, the mark should or should not be registered,” he added. “The question is, does their brand benefit from having trademark or does it get damaged from bad publicity from having that trademark?”"

Examining Trump's History: The New President And Trademark Rights; Forbes, 11/10/16

Jess Collen, New York Times; Examining Trump's History: The New President And Trademark Rights:

"What does Mr. Trump’s history of trademark litigation foretell? We’ve made an extensive examination of lawsuits filed, administrative challenges in the Trademark Office, and Trump’s history of trademark registration ownership.

Two of the things about Donald Trump which have become legendary are his love of the “Trump” brand, and his love of litigation. What do his trademark lawsuits and registrations foretell about the course of trademark law in this country for the next four years?"

USPTO pushes trademark message at National Expo; exhibitors call for more public outreach efforts; World Trademark Review, 10/24/16

Tim Lince, World Trademark Review; USPTO pushes trademark message at National Expo; exhibitors call for more public outreach efforts:

"To appeal to the many youngsters attending, there were trademark-themed colouring books, a scavenger hunt and familiar costumed characters walking around the venue (including Crayola crayons, a Hershey’s Kiss, Fruit of the Loom characters and the USPTO’s own mascot, T-Markey). One of the events objectives, Denison told us after the opening ceremony, is to show attendees, especially those visiting on field trips, that “trademarks are fun” and not just a dry legal necessity, adding: “One of the reasons that the Expo is aimed at children is to get them thinking about trademarks at 10 years old, rather than when they're 35 years old and they've already started a business.” One of the exhibitors, Meghan Donohoe, COO at the AIPLA, told us that the strategy to inspire young people appeared to be working. “All the kids were wearing Under Armour, so it was interesting to see kids connect the dots when they realise the brand that they are wearing is trademarked,” she notes."