Shelter in place has delivered attention to meal delivery, prepared food delivery, contactless delivery, not to mention DIY food products, so this Kraft television commercial led me to explore if there may be a trademark story in this brand:
Upon first seeing the ad for Kraft’s Just Crack an EGG breakfast bowls, I was left wondering if Kraft had taken a page from Betty Crocker’s psychology cookbook:
Leaving the answer of my wondering to any food scientists in the crowd, together Kraft and Betty Crocker inspire a trademark story to devour, no matter the answer.
This trademark story re-serves a prior dish illustrating the key difference between immediately ownable, inherently distinctive marks, and merely descriptive ones:
“[A] place on the spectrum of distinctiveness where both trademark and marketing types can have their cake and eat it too, is the delicious category of suggestive trademarks.”
“[S]uggestive marks are immediately protectable and generally enjoy the additional benefit of their inherent strength. On the marketing side . . . suggestive marks communicate something about the goods (but not as directly or immediately as descriptive marks do), so the marketer need not start from scratch in educating the consumer, as one must do with coined marks.”
Kraft’s Just Crack an EGG mark appears to be viewed by the USPTO as suggestive, recognizing that evidence of use will cause further examination once submitted.
In addition, no trademark applications were filed by Kraft for the other descriptive or informational phrases appearing on the package, like: ADD A FRESH EGG!
There is also no record at the USPTO of General Mills ever filing for registration of the historically referenced slogan “Add an Egg,” for cake mixes or anything else.
When others have filed for phrases like Just Add Eggs for meal kits, they have been considered merely descriptive and relegated to the Supplemental Register.
And, when another sought registration of a distinctive logo containing the phrase Just Add Water for dry veggie burger mixes, it was disclaimed as not distinctive.
On the other hand, sometimes the “just add whatever” phrase can be considered sufficiently imaginative and suggestive when the claimed goods might warrant it:
- Just Add Noodles for “swim floats” (“noodles” disclaimed);
- Life is Simple, Just Add Water for “headwear and tops”;
- Mixes Easy . . . Just Add People for vodka;
- Just Add Coffee for “coffee creamer” (“coffee” disclaimed);
- Just Add Yogurt for “seasonings . . . to be added to yogurt . . . for the creation of instant dips” (“yogurt” disclaimed);
- Just Add Salt for “bath salts” (“salt” disclaimed);
- Just Add Water for “fishing rods and poles”
It may be the Just Add Coffee and Just Add Yogurt examples are less suggestive than the others, but still so, because of the inherent “tail wagging the dog” idea?
Actually this all really boils down to the critical difference between inclusion of the suggestive word “crack” instead of the descriptive term “add” — for egg meals.
So, if Just Crack an EGG is suggestive for meal kits, this creates a strong incentive for the brand to keep the mark on the inherently distinctive side of the line:
“[T]aking a suggestive name, mark, or tag-line, and using it descriptively in a sentence on labels, packaging, ad copy, or the internet, unfortunately can move it to the left (and wrong) side of the line and render it merely descriptive.”
It seems reasonably guarded from descriptive “just crack an egg” use in ad copy:
“With Just Crack an Egg breakfast bowls, you’re less than two minutes from hot, fluffy scrambled eggs packed with all the fixings. Simply crack a fresh egg over our chopped veggies, shredded cheese, hearty meats and Ore Ida Potatoes, then stir, microwave, and enjoy. Explore all of our scrambled egg breakfast bowls and prepare for love at first bite.” (emphasis added)
Having said that, might Kraft further reduce risk by substituting the word “add” for “crack,” as it did here — returning to sender — any descriptiveness challenge?
“With Just Crack an Egg, you’re less than two minutes away from hot, fluffy breakfast scramble bowl any day of the week – just add a fresh egg! Learn more about our breakfast scramble bowls and see why breakfast love conquers all.” (emphasis added)
While we’re editing, would it further reduce cracks in the suggestive trademark shell-ter by tweaking the info-graphic to once again substitute “add” for “crack”?
Marketers, how much would you lose, if these suggested changes were made?