-Wes Anderson, Attorney
When it comes to a big company’s trademark filings, the publicly available and freely searchable Trademark Office database can provide great fodder for the media. But don’t believe everything you read: an intent-to-use trademark application is far from gospel.
Chipotle Mexican Grill, Inc. stoked the flames of speculation with an application for the mark BETTER BURGER earlier this month. The application, based on intent to use in U.S. commerce identifies “restaurant services; take out restaurant services; catering services; bar services; providing of food and drink” in Class 43. Chipotle, of course, has been exclusively in the burrito and taco business since its founding, despite its past connections with McDonalds.
The media uncovered the application, and rampant attention soon followed. Bloomberg announced Chipotle “may be getting into the burger business,” and others began to envision a chain that “would likely look and function a lot like a Chipotle, but serve burgers and fries instead of burritos and tacos.” The Wall Street Journal all but confirmed Chipotle “is developing a new burger chain called Better Burger.” For its part, the articles suggest Chipotle half-heartedly confirmed some of these conclusions, saying “the Chipotle model could be applied to a wide variety of foods” and calling the chain concept “a growth seed idea we are exploring.”
But is BETTER BURGER a done deal? I’m not so sure.
For one thing, it’s important to take fresh intent-to-use applications at face value. Chipotle’s application probably won’t be examined by the Trademark Office for at least three months. As with any trademark application, the PTO will see if there are any other parties that have already registered (or have previously applied for) the same or a similar mark for related goods and services.
A quick peek of the PTO database suggests that BETTER BURGER has a number of issues. As a general matter, BETTER BURGER is almost certainly descriptive in the context of restaurant services — “burger” being generic for a type of food served in restaurants, and “better” simply describing the quality of the products served at the restaurant. This wouldn’t necessarily preclude a Supplemental Register registration, but an intent-to-use application isn’t eligible – it would first be necessary for Chipotle to show use of BETTER BURGER in U.S. commerce before amending.
Even assuming the mark is not descriptive, there are a few active pre-existing trademarks out there that an Examining Attorney will no doubt notice:
- THE ORIGINAL BETTER BURGER for “restaurant services” (Supplemental Register)
- BETTER BURGER BUZZ for “restaurant services” (Principal Register, disclaiming “BETTER BURGER”)
- BETTER TOPPINGS. BETTER BURGER. for “restaurant services” (Supplemental Register)
- BETTER BEEF. BETTER BURGER. for “restaurant services” (Supplemental Register)
- BETTER BUNS. BETTER BURGER. for “restaurant services” (Principal Register application under Section 2(f) recently cleared opposition period).
It should be noted the latter three marks listed are all owned by Fuddruckers. The upshot? The PTO has repeatedly made clear no one party can claim rights to “BETTER BURGER” alone.
And here’s where the media may have bitten off more than it can chew. The Wall Street Journal article did some armchair trademark clearance, and may have been a bit too quick to conclude Chipotle is destined to obtain a trademark registration:
The Better Burger trademark application hasn’t been approved, but no other applications for the exact phrase are active. The last one by that name was a frozen veggie burger called The Better Burger in the 1990s that has since been discontinued, according to trademark records.
It’s not uncommon to run into this “exact phrase” fallacy — many assume, because there are no exact matches for a proposed trademark on the PTO website, that a mark is available for registration. It’s not just identical trademarks that can pose issues, but any and all “confusingly similar” applications or registrations, at least in the Examining Attorney’s judgment. If you ask me, Chipotle faces a far tougher road to registration than these articles suggest.
It might ultimately be a good thing – perhaps a Better Burger deserves a Better Name?