The Brand New blog featured the new Lay’s packaging that shows the term BAKED! prominently appearing above the product’s brand.  A few comments on the Brand New blog made astute observations of the new packaging; namely, the term BAKED! seems to take precedence over the product’s brand. It is interesting that Lay’s chose to place such emphasis on something it can’t legally protect.

When selecting a mark, it is important to consider whether the subject matter can be legally protected. A federal trademark registration provides the owner with nationwide rights. And nationwide rights allow the trademark owner to prevent others from adopting and using confusingly similar marks, after the registration of its mark, in geographic areas where the trademark owner may not be actually using its mark. The fewer similar marks that co-exist in the marketplace, the stronger an owner’s trademark will be.

Lay’s use of BAKED! is not immediately protectable for a couple reasons. First, the term BAKED! may be generic for a type of snack chip. Generic terms answer the question “What am I?” and describe the category of goods or services. Generic terms can never receive legal protection no matter how much the generic term is promoted. Lay’s use of BAKED! likely describes the category of snack chip.

Second, if not generic, the term BAKED! is merely descriptive because it immediately conveys some information to consumers about the nature, quality, or characteristic of the good or service. In Lay’s case, the term BAKED! immediately tells consumers how the snack chip is made. Additionally, the use of the exclamation point appears to show that the term is laudatory. “Laudatory” can be defined as containing or expressing praise. Lay’s use of the exclamation point expresses praise that its snack chip is baked, not fried.

Descriptive and generic terms can and should be used in connection with a product’s brand to help convey information about the good or service. But these terms should play a supporting role and not dominate the brand of the product because the product’s brand is what conveys information about the quality of the product. It is the quality of the product that consumers are drawn to and where goodwill is created. As the comments suggest, Lay’s would likely benefit more from a marketing and legal perspective if the brand is featured more prominently than the generic or descriptive term BAKED!