–Dan Kelly, Attorney
Another chapter in the Corn Refiners Association quest for a new name for high fructose corn syrup has been written, this time by the U.S. Food and Drug Administration, which this week denied a petition by the CRA to allow the use of “corn sugar” as an alternate common or usual name for HFCS. (Previous DuetsBlog coverage here and here.) As I mentioned in our last installment, words matter, and if we do not have a clear lexicon from a generic and descriptive standpoint for the mundane but important task of simply identifying things, then we are adrift when it comes to attempting to discuss trademarks, which operate on a plane somewhat removed from identification — the realm of the suggestive.
Rebranding is a task that occasionally arises — sometimes out of necessity, sometimes out of desire. It can be a pain, but I submit that it is not as big a pain as the task of reidentifying. Names have roots that grow much deeper than brands.
Herein is a lesson: when it comes to advertising and marketing, the brands and trademarks will rightfully garner much of the spotlight, but attention must be paid to the underlying names, identities, and lexicon that support the brands and marks. Think of the ROLLERBLADE case. There’s a brand that was so catchy that it was necessary after the fact to invent the generic name for the product: in-line skates.
Whomever first used, invented, or coined “high fructose corn syrup” probably never envisioned the marketing drag that it would become, or how difficult it would be to change it. It is now baked into our lexicon and laws as well as our food products — as is the desired alternative of “corn sugar.” As the FDA letter points out, consumers have come to rely on what these words mean, and they are difficult to change.
By the way, in the Big Sugar v. Big Corn case, No. 11-3473 (i.e. Western Sugar Coop. v. Archer-Daniels-Midland Co.) about which I wrote previously, pending in the Central District of California, it appears that the parties are awaiting the Court’s decision on a motion to dismiss filed by Big Corn. Stay tuned…