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?"
