Earlier this week, Joseph N. DiStefano of Philly.com reported that the University of Pennsylvania filed suit in federal district court to protect its well-known federally-registered rights in the WHARTON name and mark. (Hat tip to guest blogger Dave Taylor of Taylor Brand Group).

For those who have not been paying attention to business for

   

We’ve spent some time here discussing the world-famous Coca-Cola brand. Most recently, David Mitchell wrote about the incredible consistency of the Coca-Cola brand over the past 125 years. A while back Dave Taylor wrote a nice Ode to the Brand of Brands, the King of Cola: Coke.

And, let’s not forget my humble suggestion that a roadside sign promoting Coca-Cola at a drive-in restaurant that actually sells Pepsi instead of Coke, might be a good example of an appropriate application of the initial interest confusion test.

But, what about Coca-Cola’s frequent reference to "taste infringement" — some cleverly novel and suggestive legalese apparently coined by the Coca-Cola brand a few years back with its launch of Coke Zero?

Putting aside Brent’s fair question of whether the ads are a good idea, some of my favorite ads have been the Coke Zero viral ads, where a variety of lawyers are punk’d on hidden cameras, led to believe they are being interviewed by Coca-Cola representatives to take legal action for "taste infringement" — against the Coca-Cola team down the hall, the rival team of co-workers behind the Coke Zero launch. This one is my favorite, with lines such as these:

"Are you aware that Coke Zero tastes a lot like Coca-Cola?"

"There might be some taste infringement issues."

"I think it’s basic taste infringement, I’d like to stick with that phrase."

"Basically, a patent/copyright, a little too closely."

The ads are silly and I suspect most viewers appreciate the ridiculousness of Coca-Cola suing itself, but I’m not so sure people understand "taste infringement" to be a ridiculous or faux-legal claim — especially in this environment of increased focus and attention on the expansiveness of intellectual property rights. So, perhaps you heard it here first, there is no such legal claim.

In The Great Chocolate War, as reported by Jason Voiovich, the legal claim that Hershey’s — owner of the coveted Reese’s brand — brought against Dove’s competing peanut butter and chocolate candy, was based on trade dress. Notably, there was no asserted claim of "taste infringement". No one owns the combined taste of peanut butter and chocolate, thank goodness.

That’s not to say, however, that there aren’t intellectual property rights impacting the human sense of taste. For example, with respect to trademarks, we’ve written before about the possibility of taste being the subject of a non-traditional trademark, but to the best of my knowledge, none has been acknowledged or even identified to date. If you have information to the contrary, please share your insights here.

Of course, there is a reason for the lack of or scarcity of taste trademarks. Any product intended for human consumption is unlikely a candidate for taste trademark protection given the functionality doctrine. So, Coca-Cola can’t stop another from selling a beverage that has the same taste as Coca-Cola, just because it tastes the same, unless of course, the maker of the competitive beverage hired away key Coke employees who unlawfully revealed the closely guarded secret formula. That is how trade secret litigation happens, not "taste infringement" litigation.


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Hat tip to Dave Taylor who provided this photo for some discussion:

Looks like a fellow named Mark Reese, currenting Acting Sheriff, is running for Sheriff in Lancaster Country, Pennsylvania, right in Hershey’s backyard.

Do you suppose this Hershey’s trade dress may have inspired the Acting Sheriff’s campaign?

 Your thoughts on whether Hershey’s

—Dave Taylor, Taylor Brand Group

Think of your favorite brands of clothing, beverages, restaurants, or insurance–any product or service you like and purchase. You could probably name two brands or more in every category in addition to competitive brands that you’ve chosen not to buy, or haven’t bothered to try. Take a little bit of

—Dave Taylor, Taylor Brand Group

In this age of fiercely defended intellectual property, it’s tough developing even a single new product name.  Registered trademarks guard their brand territory in every industry and fence out their competitors. Launching a new product name can take months or years of name generating, testing, and legal process.

Done well, a sound naming strategy can help establish your brand as the high ground in the marketplace battlefield, where it will be aspired to, imitated and competed against by lesser brands struggling to reach the top.

Done poorly, product names can have awkward connotations, comprehension issues, or nagging legal problems that will cause confusion among your prospects and customers, and pay for new furniture in your attorney’s beach house.

Yet amid the difficulty of getting even one product name right, Honda Motors has gracefully created a whole family of product brands that couldn’t have been better if not a single circle R stood in their way. Consider their two most popular models, the Civic and the Accord. Link them together with other successful models, the Prelude, or the Pilot. Ahhh, do you feel it? There is a reassuring promise of peace and harmony that comes from not just one of those names, but all four of them. The Insight, the Fit and even the quirky Element are equally well integrated into the Honda family of pleasant, calming automobile trademarks. Each name has meaning we instantly understand, but in addition they work seamlessly together as a family of brands.


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Dear Coke:

I love you. You are an incredible product. You are the Babe Ruth of soft drinks, the proprietor of the word “cola,” and most of all, the brand of all brands. Your brand is not just bulletproof; it’s indestructible—even from self-inflicted damage.

Interbrand, the global branding giant, recently valued you at