While visiting SmashBurger this weekend, I noticed a new drink cup, and I anxiously examined it, wondering whether it had been updated to remove the previously devastating (to a trademark type) language: “Where SMASH means we literally smash 100% Angus beef at a high temperature to sear in all the juicy burger goodness.”

For a complete discussion, see: Another Marketing Pitfall: How to Crush a Smashing Brand Name & Trademark.

Well, that language has been removed, but there is still what appears to be unnecessary descriptive use on the new drink cup.

So, can’t any competitor now make and sell a “Fresh” and/or “Smashed to Order” and/or “Juicy” burger?

Can you say, out of the frying pan and into the fire?

The website similarly reads: “Where smash. sizzle. savor means a dedication to creating the best-tasting ‘smashed-to-order’ burger.”

Don’t these most recent examples open SmashBurger to not only a descriptiveness challenge, but now a genericness challenge too, if others decide to compete in the “smashed” or “smashed-to-order” category of burgers?

Again, why take the risk, is the marketing value of using “smashed” in a descriptive sense really that important — don’t consumers get it, and if they don’t, does it really matter to them that the burgers are, in fact, “smashed” on the grill?