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How Hot Will This Saucy Trademark Chip Fight Be? Blazin’ Hot? Now, That’s Hot!

Posted in Advertising, Branding, Food, Infringement, Law Suits, Marketing, Sight, Trademarks

There is no question that attempting to own "hot" or versions of "hot" appears to have great value and importance in the marketing world. So, how many original, unique, and memorable ways are there to communicate spicy "hot" anyway?

As to memorable, perhaps painfully memorable, Paris Hilton apparently sells designer clothes under her "That’s Hot" brand, and judging from her pending federal trademark filings, she still has an intention of expanding her "That’s Hot" brand to cell phones and alcoholic beverages, among other items, but apparently not buffalo chicken wing sauce or potato chips, thankfully.

Otherwise, it really might distract from a recent pair of trademark food fights in Minneapolis, both involving chips claiming to be "hot" too. You may recall the "Red Hot" Chip Fight between Barrel O’Fun and Old Vienna discussed here, that was quickly bagged here.

So, here are the current contenders in the most recent "Blazin’ Hot" trademark food fight:

   Vs.        

A copy of the Buffalo Wild Wings trademark infringement complaint against P&G and Pringles is here.

The most interesting aspect of the complaint, from a trademark strategy perspective, is the fact that Buffalo Wild Wings did not bring a claim for infringement of a federally-registered trademark (Section 32 of the Lanham Act). Instead, it only relies on Section 43 of the Lanham Act (designed to protect unregistered trademarks) and a pair of Minnesota state law causes of action, even though it refers to owning some federal trademark and service mark registrations for and containing the term BLAZIN’. Perhaps Buffalo Wild Wings is attempting to insulate them from attack or challenge by P&G, since none is five years old yet or incontestable. Stay tuned to learn whether P&G turns up the heat on this dispute and counterclaims for cancellation anyway.

Now, as to the "original and unique" point raised above, it is worth asking, who else appears to have a stake in "Blazin" hot trademarks for food products? Uh, let’s just say, more than a few . . . .

Sara Lee owns a federal registration for BLAZIN’ HOT covering processed meats and meat snacks, and sandwiches, namely sausage biscuits;

Frito-Lay owns a federal registration for BLAZIN’ BUFFALO & RANCH covering tortilla chips;

Pilgrim’s Pride owns a federal registration for BLAZIN’ WINGS covering chicken wings;

Jardine’s owns a federal registration for BLAZIN’ SADDLE covering hot (spicy) salsa;

International Market Brands owns a federal registration for BLAZIN RED covering red hot sauces;

Meijer owns a federal registration for MEIJER BLAZIN’ BBQ SAUCE covering barbecue sauce;

Hot Stuff Foods owns a federal registration for BLAZIN’ covering dry spice mix;

Jarden owns a federal registration for BLAZIN’ ONION covering a seasoning kit;

Oasis Foods owns a federal registration for GRILL BLAZIN’ covering barbecue sauce; and

Branding Iron Foods owns a federal registration for E.Z. EARL’S BLAZIN-HOT covering hot sauce.

So, how is it that in the prayer for relief in the complaint, Buffalo Wild Wings asks the court to enjoin P&G "from using the term BLAZIN’ with the words ‘buffalo,’ ‘wing,’ or ‘sauce’?

OK, I’m not THINKIN’ ARBY’S, but I AM THINKIN’ the scope of claimed rights in BLAZIN’ is going to be an issue in this case.

  • http://www.linkedin.com/in/tonyvella Tony Vella, Esq.

    “BLAZIN” or “BLAZING” . . . I find the arguments in favor of a broad scope of enforcement to be tepid.
    As a lover of hot spicy foods and sauces – I prefer “ATOMIC.”

  • http://operativewords.com Anthony Shore

    (this is also posted on the VERB forum on LinkedIn)
    Not worth a fight over “Blazin’”. Not worth even bringing to market with all that clutter.
    You wondered about new, unique, memorable ways to convey spiciness?
    I’ll give you one: the Angry Whopper.
    http://www.sogoodblog.com/2009/01/07/burger-king-unveils-the-angry-whopper/
    I, for one, salute Burger King for their original yet relevant name. So many others have connoted food spiciness using tired metaphors of weaponry, danger, violence, fire, etc. But BK approached it from an emotional perspective.
    Though surprising and unexpected, it’s a perfectly natural metaphor we already use. A hot temper is an angry one.
    There’s a surfeit of imagination and excess of fear in too many CPG companies. They see it as a risk to adopt an unexpected name. Their risk aversion, ironically, undermines their success. Undifferentiated names do not reinforce a differentiated product. And without perceived differentiation, a product stands no chance of succeeding.

  • http://htpp://www.michaelgury.com Michael Gury

    To me, this is an example of how creative people tend to fax it in. By which I mean that there are a lot of file card/existing names that then have to be stressed w/ Legal versus coming up something original. Then it becomes a big costly issue and frankly copycat strategies in branding/naming are pretty dull and then you need a product that is really different, priced appropriately and displayed correctly.
    Now, so to my discredit, I am a creative person and a marketer.
    I appreciate Mr. Shore’s comment about the use of the word “angry” as a descriptor. It’s original, but that of course will be usurped by other interesting adjectives, like “ugly”, “toxic”, “nasty”, “terrifying”.
    Fact is that trademark registration is pretty cluttered, and my point is that the “creativity” that is being applied to these products, with the exception of micro-brands, seems to be really lacking and as a result is tying up a lot of legal time and cost battling over copyright ownership of descriptors that, upon being printed on packages, are already on their way out of town.

  • http://cuffari.com/blog/ Jack Cuffari

    Anthony’s spot-on: risk aversion undermines vision, and thereby undermines success. You think CPG companies have it bad? Try developing identity and messaging in the pharmaceutical sector, a regulatory-paranoid arena whose conservatism so often cripples the creativity and ability necessary to cut through and connect.
    That said, I think it’s crucial to remember that metaphor is a cognitive function, not a linguistic one. If “Blazin’” wasn’t so over-exposed and exhausted a word, I would strongly recommend transcending our seasoned (ha!) and extensive depth of experience, and turn to consumer testing. We still need these invaluable insights if we’re to build an identity that connects and resonates. That’s the opinion set that truly matters, not the one from all of us branding/naming folk. Opinions? Oh yeah, we’ve got a surfeit. But consumers are the ones who will get it or not, and buy or not.
    Of course, all that’s assuming that someone has done their homework and determined that there’s a market-driven need for the product in the first place. And given the over-abundance of brands in nearly every food category, that’s a huge-ass assumption indeed.

  • http://www.nameflash.info Mark Prus

    Excellent points about differentiation, Anthony & Jack. However, don’t give the insiders at Buffalo Wild Wings and P&G that much credit…I’d be willing to bet that the word “Blazin” was tossed out in a meeting, perhaps with the Advertising Agency, and someone latched onto it. After a cursory glance to see if anyone else in their category was using it, it was launched without an in depth market scan to assess competitive impact. I bet the lawsuit was launched without a financial assessment of the cost/benefit of the outcomes. So what if you get one party to stop using that word…there are so many other examples out there…are you going to go after everyone? Doubt it. “The first thing we do, let’s kill all the lawyers” from Shakespeare’s Henry VI might sound like good advice here, but in reality “kill all the stupid clients” might work better.