–Dan Kelly, Attorney

I recently spotted this bit in an ad flyer:

And it got me to thinking, what makes a fluorescent shoplight “high performance?”  Does American Fluorescent make a non-high performance shoplight, or just a regular performance shoplight?  If so, how is it advertised?

When it comes to laudatory terms, trademark law mirrors common sense:  although it may be possible to secure proprietary rights in a laudatory term as a trademark, laudatory terms are generally considered weak and entitled to a narrow scope of protection.  In other words, laudatory terms seldom make good, strong trademarks, which should aim for distinctiveness.

Apart from being weak, the other issue to be wary of in connection with laudatory terms is false advertising, although claims of this sort tend to be rare when a company puffs its own products.  Ads comparing a company’s product with its competitor’s product tend to draw the most fire in the false advertising arena.  Even so, it is theoretically possible to go too far when it comes to laudatory terms.  (In the above ad, the claim that the fixture “creates” 90% more light than a standard shoplight is more likely to draw fire in the false advertising context than the “high performance” claim, although the two are likely intended to be read together.  It also may be the retailer making the claim, not the manufacturer.)

Of course, I do not recommend erring on the other end, either–something that comes close to disparaging the product than puffing it up–and I’ve actually seen something that comes close, which, to paraphrase Dave Barry, I am not making up:

Why not just call it “Joy” and be done with it?  There is probably a good reason, but I certainly do not know what it is.

Here’s to many high performance trademarks down the road.