Initial Interest Confusion

   

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.


Continue Reading

A little while back I wrote about the Likelihood of Confusion test in Trademark Law and how it protects trademark owners against much more than simply likelihood of confusion as to source.  

I also wrote about how Wolf Appliance was able to convince a federal judge in Wisconsin to grant a preliminary injunction barring Viking Range from selling a

More on single color trademarks today. Eighteen months ago, Wolf Appliance obtained a federal trademark registration in connection with "a red knob or knobs" of "domestic gas and electric cooking appliances, namely, ranges, dual-fuel ranges, cooktops, and barbeque grills."

Wolf put its registration to the test a couple of weeks ago in a federal

Putting aside, for now, the unsettled question of who currently owns the iPad trademark, and Dan’s perspective on Apple’s trademark clearance strategies, from last week, look at what our finely-tuned e-mail spam filter just snagged:

It is a similar story to my previous Free Dell XPS Laptop Spam Scam? blog post from last December. Here, however, the Apple, iPad, and the (possible)

An in-depth focus on arguably the most important trademark issue to brand owners and their trademark counsel. The seminar will focus on the many faces of trademark confusion, with a special focus on initial interest confusion, reverse confusion, survey evidence, and post-sale confusion theories.

Promises to be a good program, we hope you join us, special guests Ron

Same drill as yesterday. Another email spam scam? More trademark fair use abuse?

Is it just me, or is the branded email spam coming out of the virtual woodwork, or what?

It appears that spam email — complete with fully branded solicitations — is becoming more and more aggressive, both from legal and technology perspectives.

We

What if you were told that if you agreed to "test" a Dell XPS laptop you could keep it, for free?

Would you expect the offer to be from Dell Computer?

After all, who else but the manufacturer would care to give a computer away for simply having you test it?

Would you at least expect the offer to be affiliated with, or authorized, or approved by Dell Computer?

What if the unsolicited email offer avoided your spam filter and looked something like this?

Would you click on the "CLICK HERE" icon as instructed, or would you scroll all the way down to the bottom of the page to see if you might be able to learn more before clicking?


Continue Reading