According to Mr Seidman, he thinks Chobani is using the slogan to show that it is an ethical company - and that is his expertise. Apparently the idea is to buy Mr. Seidman's ethics programs, but if they work, you are not supposed to let anyone know.
It will be interesting to see how "How" is handled by trademark law and how the whole "How" thing comes out.
The latest company to lose an attempt to trademark a platitude is Dunkin' Donuts.Dunkin had attempted to trademark the phrase "Best Coffee in America." The US Patent and Trademark Office rightly denied the request since the mark was not sufficiently distinctive. While many coffee drinkers, especially here in the Northeast US would certainly agree with Dunkin's claim (especially when compared to the bitter swill dispensed at the more popular coffee bistro named after astronomical male deer) this is simplye not teh kind of distinctive product identifier that trademark law embraces. A previous loser in the "Best in America" trademark attempts game was the Samuel Adams Brewery in Boston. Once again, no argument from this reader about the veracity of Sam Adam's claim to the "Best Beer in America," but opinions may differ and Sam can't own the phrase to the exclusion of competitors.
While Dunkin' cannot trademark the phrase, they can certainly use it to hawk their coffee. In this ad, they stake an equally non-empirical claim to "America's favorite cup o' joe."
Seriously? Apparently those husky emblazoned coffee mugs occasionally given out to the Morgan School teacher of the year are depressing the market for "authentically licensed" UConn Husky coffee mugs.
In defense of the University's position, perhaps there might be some consumer confusion regarding the products of the 2 institutions. The way the UConn Huskies football team has been playing, could they conceivably be mistaken for the 1-4 Class S High School Morgan Huskies football team?
The first lesson in business ethics: Just because you have a legal right doesn't mean you have to exercise it. Exercise discretion. It's a lesson that is too often unheeded. A university, especially a public university, should take a leadership role in its state. That means that there are considerations that are more important than the bottom line. But then, that would be very unbusiness-like.
I hope none of you kids were hoping to dress up as a husky for Halloween. You may be interfering with the all important marketing strategy for State U. I guess this is the price that you pay for having big time athletics - boneheaded decisions justified on the basis of "business."
Watch out UConn! A Canadian Territory wants its name back!
Back in December, this blog posted the story of Chick-fil-A's attempt to shut down an independent tee shirt maker in Vermont who was producing "Eat More Kale" tee shirts. The story has now moved to a new level with the report that "an examining attorney in the trademark office issued a preliminary decision that there is a likelihood that people would confuse the sources of the Eat More Kale and Eat Mor Chikin phrases, thinking they come from the same place."
The next level of this story transcends the issues of trademark and intellectual property and highlights the challenges of legal education. How do you convince students that the law is founded upon logic and reason when there are so many inexplicably illogical and irrational decisions? According to the marklaw.com website, the following factors are to be considered in determining the "llikelihood" of consumer confusion:
Whether or not the goods or services using the same mark compete with one another. Marks that are used on similar or related goods or services are more likely to confuse consumers as to the source of those goods or services. Even where the plaintiff's products are not exactly similar, the court may in some cases consider how likely the plaintiff is in the future to sell similar products.
Whether or not the goods or services are so closely related that they are being marketed through the same stores or channels of distribution.
Whether or not the alleged infringer intended to trick consumers in order to "cash in" on the plaintiff's business good will.
Whether the marks are similar in appearance, phonetic sound, or meaning.
How careful the consumer is likely to be prior to purchasing. The more sophisticated the consumer (e.g. business owners versus children), or the more expensive the product, then the more discriminating the consumer is expected to be, and the less likely confusion will be attributed to them).
Whether or not the companies are accessing overlapping customer bases. If the companies both sell largely to senior citizens, to teachers, or to home-based business owners, there is more likely to be consumer confusion.
The legal strength of each of the marks. The greater the public recognition of a mark as a source identifier, the more likely that similar uses will be confusing.
Whether there has been any actual confusion. If so, this is not conclusive evidence of likelihood of confusion, but must be weighed together with the other factors.
Even a liberal review of the evidence reveals not a single one of these factors weighing in favor of consumer confusion. To support this decision, the reasonable consumer would have to be one who cannot distinguish between a chicken sandwich and a tee shirt; and cannot comprehend differences among words containing the letter "'k"; and who has lived in a cave so long as to be unaware of fast food culture and practices. No wonder students find the law confusing.
I cannot profess to be an expert in these matters, but on the trademark infringement issue of public confusion, I just don't see a lot of dangerous consumer confusion between a fast food chicken restaurant that sells chicken sandwiches and a T-shirt maker that sells T-shirts about eating kale.
On the issue of trademark dilution, I think it is pretty hard to claim the distinctiveness of the phrase "Eat more (insert food item here)." In fact, I am certain that my children will recall me repeating that phrase, or something quite similar to it, many times over the years; "Eat more peas," or "Eat more liver" or "No desert until you eat more fish sticks," or something like that. If I reveal here that my physician recently advised me to "eat more fiber," should he expect a missive from Chick-fil-A?
Lawyers for Rutt's Hut, a famous hot dog house in Clifton NJ, have notified upstart competitor, Mutt's Hut, that its use of a similar sounding name, "constitutes a willful, obvious, and inexcusable infringement of our client's intellectual property rights." The owner of Mutt's Hut says that he has received more free publicity from the notice and press coverage than he ever could have gotten without it. Perhaps Mutt's is just hotdogging for the press because he relishes the publicity of protracted litigation.
