Now that Thanksgiving is over, Americans across the country are taking some time to relax, reflect, and digest. I know I will be doing all three, after enjoying a wonderful Thanksgiving Day surrounded by family, friends, food, and, yes, trademarks.
Even in the midst of one of the most significant holidays I still couldn’t quite get away from trademarks. While we weren’t discussing res judicata, trade dress protection, or comparative advertising, our discussion still underlined a very important (and sometimes overlooked) principle of trademark law: context is everything.
Context is what kept consumers being from confused yesterday as to whether the Lions were doubling up the Chicago Bears, the California Golden Bears, the Baylor Bears, or the Hershey Bears. The NFL association, uniforms, use of other wording, and many other contextual clues all contribute to consumers ability to distinguish between the various Bears.
Context is also what turns an otherwise descriptive name into a distinctive trademark. “Apple” is merely descriptive of food products, but for computers that descriptive meaning is lost. And while the phrase “Thanksgiving Day” is a holiday that is not likely registrable for a number of goods, when used in the context of pet food, it’s distinctive and registered:
And context is very important for those brands fighting off potential genericide, i.e., when a brand name loses its trademark significance by becoming the generic term for the goods. When you were around the dinner table, did you ask for Cool Whip® or non-dairy whipped topping? Jell-O® or gelatin? Did you cook your casserole in a Crock Pot® or a slow cooker? And when your guests went home with leftovers, did you put them in Tupperware® or containers? And with the cold weather, did you make sure to put on your Chapstick® or did you use lip balm?
Yes, context is everything. It matters for brands and it matters for a lot of things your family and friends might say at the dinner table during a long, stressful holiday. And sometimes context is as simple as geography. The issue that brought all of this up for my family was whether some of the dishes we were preparing was a “casserole” or a “hot dish.” Being from Iowa, I was obviously on Team Casserole. As you can probably infer, we had someone from up Nord representing Team Hot Dish. But again, context is everything. And in this context, whether it was hot dish or casserole, it was still Thanksgiving.
Hope you all had a Happy Thanksgiving!