– Draeke Weseman, Weseman Law Office, PLLC
Bandwagoners everywhere have reason to celebrate following a recent opinion out of the Court of Appeals for the Federal Circuit. In Juice Generation, Inc. v. GS Enterprises LLC, Appeal No. 2014-1853, (Fed. Cir. July 20, 2015), the Federal Circuit reviewed the Trademark Trial and Appeal Board’s assessment that consumers were likely to be confused between the mark “Peace Love and Juice” for a juice bar and the mark “Peace & Love” for a restaurant. Sending the case back to the Board for further review, the Federal Circuit determined that the Board failed to adequately consider the weakness of a mark where there are numerous registered and unregistered third-party marks that incorporate similar phrases. For example, the Federal Circuit listed the following marks it considered as evidence that the combination of “peace” and “love” is a weak mark when used in connection with food:
PEACE LOVE NOODLES HE AI MIAN
PEACE LOVE AND PIZZA
PEACE LOVE YOGURT
PEACE, LOVE & ICE CREAM
PEACE, LOVE AND LITTLE DONUTS
PEACE.LOVE.DÖNER
PEACE, LOVE & BEER
PEACE, LOVE, AND CHOCOLATE
PEACE LOVE & OATS
PEACE. LOVE. & GOOD FOOD.
PEACE, LOVE AND FRENCH FRIES
PEACE, LOVE & CUPCAKES
PEACE LOVE BURRITOS
PEACE, LOVE, AND BURGERS
PEACE · LOVE · PANCAKES
PEACE LOVE & BARBECUE
PEACE, LOVE & CRUNCH
PEACE LOVE GRANOLA
PEACE, LOVE AND PINOT
PEACE. LOVE. TREATS.
PEACE, LOVE, AND CHOPS
PEACE, LOVE, AND HOT DOGS
PEACE. LOVE. PASTA.
PEECE LUV CHIKIN
PEACE, LOVE & CHEESECAKE
PEACE LOVE AND APPLE PIE.
That’s a lot of peace and love and . . . food! This led the Federal Circuit to conclude that consumers may be accustomed to distinguishing “peace love blank” marks in the food service industry on the basis of minute distinctions. As a result, these marks deserve only a very narrow scope of protection.
As some readers may know, the enthusiasm for “peace love blank” marks comes from a 1970’s song written by Nick Lowe and performed by Elvis Costello called “(What’s so Funny ‘Bout) Peace Love and Understanding.” You can see it performed here. Apparently, besides being funny it made people hungry.
Today’s generation may not have its appetite satisfied so easily. Just look at recent moves taken by Taylor Swift. Last fall, she applied to register trademarks across a wide variety of merchandise for popular lyrics off her album, 1989, including “Cause We Never Go Out of Style,” “Party Like its 1989,” and “This Sick Beat.” It doesn’t take much imagination to see the trademark opportunities for hungry bandwagoners that may have been thwarted, for example: “Cause Cheeseburgers Never Go Out Style,” “Eat Like its 1989,” and “This Sick Beet.”
Anyway, all of this talk about food reminded me of another trademark dispute involving a common message telling us to eat more of something. And, in case you didn’t notice it on the long list above, Chick-fil-A happens to own a registration for the mark “Peece Luv Chikin.” So, Bo, how about a little “Peace Love and Kale” for your next t-shirt? I’d buy one!
In the meantime, I guess we’ll just . . .
