–Dan Kelly, Attorney
More than a year ago, I blogged about high fructose corn syrup getting a makeover. The Corn Refiners Association has undertaken a campaign to rename high fructose corn syrup as “corn sugar.” (See SweetSurprise.com and CornSugar.com to be indoctrinated.)
I recently learned that a number of sugar companies (that’s cane sugar or beet sugar) sued the Corn Refiners Association in federal district court in April for false advertising under the Lanham Act, claiming that calling high fructose corn syrup “corn sugar” is false and misleading. The court recently issued an opinion on the Corn Refiners Association’s motion to dismiss, essentially allowing the case to proceed. A PDF of the first amended complaint is here, and it is fascinating.
At the risk of stating the obvious, one issue that frequently arises in the arena of trademark law is the meaning of words. Many trademarks are comprised of words, and the suggestive or descriptive connotation of such words in view of the goods or services provided under the mark is highly relevant to the legal status of a trademark. In this “Big Sugar v. Big Corn” case, the words at issue are “sugar” and “corn sugar,” but they are not trademarks. They are generic words. As it turns out, the Corn Refiners Association might not legally be able to simply “rebrand” high fructose corn syrup to be “corn sugar.” Corn sugar, as it turns out, has an “official” definition in federal regulations, which you can see here. Corn sugar is “produced by the complete hydrolysis of corn starch with safe and suitable acids or enzymes, followed by refinement and crystallization.” This does not define high fructose corn syrup.
Words matter, and making sure that we all have a common understanding of generic words like “sugar” and “corn sugar” is a predicate to any meaningful dialogue on trademarks and branding. We will keep an eye on Big Sugar v. Big Corn and report on developments.