The short answer is, when it’s not false or misleading about the product inside the package.

This past weekend, my daughter and I found ourselves in Costco, picking up some provisions, and this bag of non-provision somehow happened to land in our shopping cart:


Almost protesting, based on a prior experience with Hershy’s Brookside dark

There once was a day when being an "artisan" meant something: "A person or company that makes a high-quality, distinctive product in small quantities, usually by hand using traditional methods: artisan foods."

The key elements of an artisan’s handiwork seem to be hand-crafted, distinctive products of high-quality that are produced in small numbers. Perhaps bread from the local bakery, craft beer from the corner brewpub, unique cheese from a small dairy farm, and for the less edible, one-of-a-kind jewelry items, custom furniture pieces, and hand-painted household knickknacks.

But, nowadays, even a "major online service provider" in the field of intellectual property filings appears interested in suggesting or emulating the qualities of an artisan’s handiwork: Artisan IP.

Meanwhile, back to our discussion of "artisan" foods, I’m thinking it’s safe to say that when Domino’s Pizza adopts the term for its latest fast food pizza delivery offering, when Starbucks employs the term in naming its breakfast sandwich offering, and when Frito-Lay chooses Artisan Recipes as a trademark for its latest pre-packaged tortilla chip offering, true artisans must be in desperate search of a new title to reclaim their identity: 


Foodette Reviews also has noticed the incongruity of mass merchandise national chains adopting the term. I just don’t think it makes one a "snob" to be bothered by the misdescriptive use.

Yet, I suppose "artisan" still means something, we’re just not sure what, at the moment, since it appears to be a moving target, as Nancy Friedman recently noted on her truly artisanal Fritinancy Blog (not to be confused with Artesians, of course).

According to Grub Street New York (hat tip to Nancy on this find), what appears to be certain is that the marketing cachet of the word "artisan" began its rapid demise into "meaninglessness" about a decade ago when the co-opting by "giant companies" began, in order to "hawk fast-food burgers and delivery pizza."

As a trademark type, given the larger-than-life bandwagon of those using the term "artisan" in connection with pizza (WeightWatchers, Wedge, Pitfire, Roundtable, Mario’sMax & Leo’s, Mazzio’s, and Freschetta, among others), I’m left wondering whether Artisan Pizza is the next Brick Oven Pizza — namely, a new category of pizza, rendering the term generic, and free for all to use, assuming of course, the use is not false or misleading to consumers.

Last, but not least, for an excerpt from a 2003 Office Action from the USPTO refusing registration of ARTISAN as a trademark for "frozen pizza," based on deceptive misdescriptiveness, see below the jump.Continue Reading Artisan Puffery?


Have you noticed the popularity of silicone and plastic wrist bands? Apparently very big business.

My fourteen year old son just bought another today for about $30. He has informed me that Power Balance is the leading and most desired brand and there are many "cheaper imitations" out there.

I don’t wear one, and have no plans to wear one, just so you know.

Of course, there are no shortage of skeptics about whether the wrist bands enhance performance or offer any tangible physiological benefit other than the placebo effect. And you might consider me in that camp at the moment.

My twelve year old son told me he doesn’t believe they do anything, but he then went on to point out his best performance in a recent baseball tournament (several hits with no errors) was obtained wearing one, so I guess you might say, truth be told, at least this younger son is on the fence.

I suppose, depending on what side of the fence he lands, I could take up a claim for him in the pending class action lawsuit filed against Power Balance earlier this year, described this way:

The Power Balance® products class action lawsuit centers around the fact that Power Balance marketed their products, which include wristbands, pendants and other Mylar Holograms, by purposefully misleading the public and falsely advertising and marketing the products as having, when worn close to the body, physiological benefits including, but not limited to, increased strength, balance and flexibility. In reality, the aforementioned products maintained absolutely no physiological benefits.

This federal class action lawsuit apparently followed on the heels of an Australian investigation of the company’s same performance claims that resulted in the following corrective advertising statement down under:

"In our advertising we stated that Power Balance wristbands improved your strength, balance and flexibility. We admit that there is no credible scientific evidence that supports our claims and therefore we engaged in misleading conduct . . . ." 

Ouch, that must have hurt. So, what can the fate of the "Performance Technology" tagline be?

One might also wonder what the fate of the company’s very "techie" protection in Int’l Class 9 might be since it purports to cover: "Apparatus for recording, transmission or reproduction of sound and images; Apparatus for transmitting and reproducing sound or images; Electronic database in the field of Holographic, Biomagnetic, Bioenergetics, Biofield Balancing recorded on computer media."

But, no worries, mate, even if the POWER BALANCE and PERFORMANCE TECHNOLOGY marks are found misleading or deceptive for some goods, seems like the coverage for mere "jewelry" in Int’l Class 14 ought to be safe, right?

What do you think?

Finally, for a johnny-come-lately, who apparently only sees upside in the litigious silicone wrist band market (or perhaps it truly believes it has built a better wrist band that can withstand this kind of marketing scrutiny), see below the jump.Continue Reading Power & Balance or Plastic & Placebo

–Susan Perera, Attorney

There seems to be few industries with such fiercely combative advertising as wireless phone service providers. Reminiscent of the cell phone map advertisement war in 2009, 4G advertising is certainly on its way to the same level of tension.  Sprint, Verizon, T-Mobile, and AT&T have all rolled out 4G advertising in the

–Dan Kelly, Attorney

I recently spotted this bit in an ad flyer:

And it got me to thinking, what makes a fluorescent shoplight “high performance?”  Does American Fluorescent make a non-high performance shoplight, or just a regular performance shoplight?  If so, how is it advertised?

When it comes to laudatory terms, trademark law mirrors common


You may recall the Gatorade v. Powerade false advertising lawsuit filed by a Pepsico entity (Stokely-Van Camp, Inc.) against rival The Coca-Cola Company back in April, discussed here (with a copy of the complaint).

You also may recall how G scored an F in the courtroom, back in August, losing a hotly contested motion for