Best Coffee in America?
Does Dunkin’ Donuts provide the Best Coffee in America? Maybe so, but the US Patent and Trademark Office has refused to allow them to register BEST COFFEE IN AMERICA as a trademark.When is a proposed trademark “merely laudatory,” and what the heck is “puffery?” Read on to find out.
In September, Dunkin’ applied to register BEST COFFEE IN AMERICA as a trademark for “restaurant services; cafe services; snack bar services; fast-food restaurant services.” The USPTO Examining Attorney refused the application on the grounds that the proposed mark was “merely laudatory and descriptive of the alleged merit of applicant’s services and the goods featured therein.”
That’s not to say that Dunkin’ can’t continue to use the phrase in question. The USPTO’s attorney clarified that:
While applicant may use this wording in promoting its restaurants and cafes and the coffee sold therein, the proposed mark does not function to indicate the source of applicant’s services or distinguish applicant’s services from those of others. (Emphasis mine)
The bolded wording isn’t just technical mumbo-jumbo. This is the essence of what a trademark is. Trademarks tell consumers who is the source of the goods or services. When you buy Nikes, you know they’re coming from Nike.
Wording that is merely laudatory doesn’t really function as a trademark at all. Rather, that type of language – THE BEST this, WORLD’S GREATEST that – describes the goods or services in a positive light. While trademarks can be descriptive (proceed with caution, however, as descriptive marks tend to be entitled to a lesser form of trademark protection), this type of language is so common across all types of goods and services that the law regards it as “puffery.” Everybody claims their product is the finest in the land. Consumers have been trained to recognize this as common advertising language, not as a distinct, brand-identifying trademark.
The USPTO’s filing cited a variety of similar proposed marks that were rejected on the same grounds, including THE BEST BEER IN AMERICA, AMERICA’S FRESHEST ICE CREAM, and AMERICA’S FAVORITE POPCORN!
Dunkin’ had also committed a cardinal mistake: using their proposed trademark as descriptive language in their own marketing materials. The file includes a 2006 press release from Dunkin’ stating “Dunkin’ Donuts Consistently Rated Best Coffee in America.”
This is another indication why laudatory terms can’t serve as trademarks. If BEST COFFEE IN AMERICA was a trademark, how would Dunkin’ report on a survey showing their coffee was rated #1? “Press Release: Dunkin’ Donuts BEST COFFEE IN AMERICA has been rated ‘best coffee in America.'” That doesn’t quite work, does it?
What Does This Mean for Business Owners?
It’s perfectly fine to use these types of phrases in your marketing or advertising materials. If you make “San Diego’s Best Fish Tacos,” tell the world about it (and please let me know, I’ll be first in line). But be aware that this type of language can’t function as a trademark, so it should always be used in connection with a mark that meets all of the other legal qualifications.