Under the Sandwiches category: “Smashed Burger,” is treated generically as a type of sandwich burger, along with “Kobe Beef” and “Spicy Chicken” sliders, and “Red Snapper” and “Chicken” sandwiches. So, does SmashBurger have a case, where burgers are still “smashed fresh“?
Under normal circumstances, I’d say yes, but SmashBurger is that brand owner who refuses to heed marketing pitfall warnings, inviting others to treat “Smashed Burgers” as a type of burger, not as an indication of who is making and/or selling the smashed burger.
A while back we asked, can anyone smash a burger? Ling & Louie’s appears to believe so, and given SmashBurger’s misuse, it’s hard to argue otherwise. Perhaps SmashBurger plans to take solace in inventing the generic category name?
My preference would be to protect and respect the brand as a trademark, and encourage the marketing types to come up with a generic category name for public use, for that inevitable day when the brand owner has started something special and others want to join in and compete.
If you represented Ling & Louie’s, as a marketing type, how comfortable would you be to call a sandwich menu item, a “Smashed Burger”?
Trademark types, if you represented Ling & Louie’s, and you were asked to respond to a cease and desist letter, would you tell SmashBurger to pound sand?