Tag Archive for: Taco

Beyond The Taco: Someone Is Now Trying To Trademark ‘Breakfast Burrito’

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This very morning, I paid $ 5 for a breakfast burrito at a place near where I work. To be frank, I regret to say that it was ultimately disappointing. How in the world do you construct a steak breakfast burrito that lacks salt? The great news for me is that there are roughly a gazillion places around me that also advertise breakfast burritos, so I currently have other places to get them. The bad news, however, is that someone out there is taking a run at trademarking “breakfast burrito”, so that might not be the case in the future.

Recently, the Twitter account for Timberlake Law—a North Carolina based specialist in trademarks and copyrights—posted a link to the United States Patent and Trademark Office’s website for an application to trademark the term “Breakfast Burrito.”

Though most people will inherently sense that this seems ridiculous, Timberlake does a good job of spelling out the reason: “While it’s true that the drawing and specimen should match, the mark and the goods shouldn’t,” the tweet explains. To put it another way, the application seeks to trademark the phrase “Breakfast Burrito,” but in the section where the applicant explains what the trademark is for, the answer is “Breakfast burritos; Burritos.” Basically, if the only way you can describe what you’re trying to trademark is by using the same phrase as the trademark, then there’s a solid chance that the phrase is common enough that it can’t be trademarked in the first place. It doesn’t take much legalese to understand that.

Put more simply: a trademark can’t be for the generic name of a product or service. This should be obvious to all, as the point of trademark law is absolutely not to narrowly limit the choices consumers have for a given product or service. Still, this concept seems to elude some people.

The whole thing should remind you of the whole “Taco Tuesday” fiasco that is continuing to date, where Taco John’s somehow got a trademark for a phrase that describes serving people tacos on Tuesdays. In fact, that analogous trademark issue is useful as a marker for how the Trademark Office is complicit in fostering an environment in which people think they can trademark something like “breakfast burrito.”

As to who is actually trying to do so in this case, it’s something of a mystery.

So who exactly wants the rights to eggs wrapped in a tortilla in the morning? Eater attempted to get to the bottom of this application and, unsurprisingly, didn’t get very far. The site “reached out to the person listed on the application,” whose address “matches that of a personal injury law firm in LA,” but “did not hear back on requests for comment made over email and the phone by press time.”

So what’s this all amount to? Likely very little. Anyone with a few hundred bucks can attempt to trademark anything. Receiving a trademark and then protecting it is far more difficult, and based on the assessment of Timberlake and findings of Eater, this attempt to register “Breakfast Burrito” appears to be a random shot in the dark.

A shot that should, and likely will, fail. Still, we have a Taco Tuesday trademark, so how much of a stretch is it to see the USPTO rubberstamping one for “breakfast burrito” as well?

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A New ‘Taco Tuesday’ Trademark Challenger Approaches: LeBron James

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As we’ve previously discussed, restaurant chain Taco John’s has waged at least a decades-long war to try to pretend that its trademarked term, “Taco Tuesday,” hasn’t become generic. How the chain ever got what sure looks to be a purely descriptive trademark is anyone’s guess, but armed with its trademark the company has since gone after other restaurants big and small for daring to host their own “Taco Tuesdays.” If all of this sounds depressingly stupid to you, well, you’re not wrong.

You really would think the convergence of trademarks and tacos eaten on Tuesday couldn’t get any dumber, except here comes LeBron James. Some background is probably in order. See, LeBron loves tacos. So much so, in fact, that he tends to eat them on many Tuesdays, all while Instagramming his family doing so and affecting a Hispanic accent while shouting about how much he loves Taco Tuesdays. That would have been only mildly interesting at best, except that LeBron’s company has now decided to try to trademark the phrase. Side note: The New York Times should really be better about conflating copyright and trademark law, as you will see below.

On Aug. 15, a company called LBJ Trademarks LLC filed a request with the U.S. Patent and Trademark Office on behalf of Mr. James to copyright “Taco Tuesday.” The company seeks protection for use of the phrase in a host of forums, including “downloadable audio/visual works,” podcasts, social media, online marketing and “entertainment services.” USA Today first reported on the request this weekend.

There are layers of dumb here. First, it seems unlikely that Taco John’s, wielding its own “Taco Tuesday” trademark, wouldn’t be able to claim some level infringement in at least some of these market designations, even assuming the company doesn’t have valid trademark registrations in those categories of its own. But, again, the fact that Taco John’s has those trademarks on a descriptive phrase like “Taco Tuesday” is itself stupid. And, circling back to LeBron, the idea that he would take a phrase already-coined and famous, that he then simply shouted into social media, and then lock it up in a variety of markets is compounding the stupidity.

But just to add a bit more to this, LeBron’s spokesperson basically torpedoed any chance his company has of getting this trademark approved with the following comment.

“The filing was to protect the company from potential lawsuits should we decide to pursue any ideas, nothing of which is in development,” a spokesman for Mr. James said this week on (taco) Tuesday. “It has nothing to do with stopping others from using the term.”

“Should we decide to pursue any ideas, nothing of which is in development” might as well say, “We’re not using this in commerce and don’t have any plans to.” Trademark law requires that the applied for mark be actively used or planned to be used in commerce, or else you don’t get the trademark. Defensive marks like this simply aren’t a thing. If the USPTO is made aware of the spokesperson’s comments, it would be insane to approve this mark.

Meanwhile, the whole Taco Tuesday trademark thing probably needs to just be invalidated to begin with.

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More Taco Tuesday Trademark Stupidity, This Time Down Under

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Some of us believe that all the different nations of the world are filled with people that are mostly the same, that share the same values, and the same troubles. If only we could find some unifying issue or force that could fully bring us together, then we could finally live in a kind of Lennon-esque harmony with one another. I submit to you that perhaps stupid trademark stories revolving around “Taco Tuesdays” could well be that thing. In America, for instance, a chain called Taco John’s has spent the past few years waving around the trademark the USPTO stupidly gave it on the both generic and descriptive term “Taco Tuesdays”, insisting that every other business that uses it stop immediately. How this mark was ever granted, given that it describes a good offered on the day it is offered — tacos on a tuesday — is a question that has kept me up many a night. Despite the trouble Taco John’s has caused with this, the trademark remains registered and in place.

And now it appears that Australia has its own version of this, featuring another company waving around another trademark for “Taco Tuesdays” that never should have been granted.

A stone’s throw into the city’s wild west sits Footscray’s Reverence Hotel, famed for its live music and cheap Tuesday tacos. After six years of dishing up the spicy fare, the landmark corner hotel is suddenly feeling the heat over a claim that it is infringing a trademark held by Mexican food chain Salsas Fresh Mex, which has outlets dotted across Melbourne including a site at Highpoint shopping centre. A letter from Salsas Holdings marketing manager Rebecca Woods to The Reverence Hotel demanded it stop using the phrase ”Taco Tuesday” on its website and social media accounts.

“We assume that you are unaware that Salsas is the owner of the registered trade mark TACO TUESDAY in respect to the provision of Mexican-style food and restaurant services,” it states. “The Mexican-style food offered by Salsas under that trademark has become extremely well and favourably known among members of the public in Australia, and as a result is associated with Salsas.”

I’m going to keep hammering on this until someone listens, because this trademark is not valid. Period. Paragraph. Full stop. It does not identify a source. The phrase itself is generic and common in both the restaurant industry the world over and even in homes around the world. Tuesday is for tacos and nothing about the phrase has anything to do with any individual person or business.

The folks at Footscray’s had this same reaction in the most punk venue way possible.

Publican Matt Bodiam said his first reaction on opening the letter on Wednesday was amusement, but he soon realised the potential seriousness.

“I had a bit of a giggle, then [thought] I better look into it,” he said. “I can’t believe someone can trademark ‘Taco Tuesday’; it would be like trademarking ‘Happy Hour’ or ‘Tight-Arse Tuesday’, although perhaps someone has trademarked those as well.”

Actually, the “happy hour” reference is only half right. In that phrase, we have an example of the generic language tons of businesses use. Taco Tuesdays is the same in that respect, except it’s also descriptive. This isn’t the protection of the consuming public, the very point of trademark law, but rather the locking up of language for commercial purposes. And it’s dumb.

But it also works. Salsas has enough of a legal warchest to make Footscray’s fighting the good fight on this an absurd notion. It is far easier and less expensive to simply cow to the demands of the trademark bully than putting up a fight in court. Trademark bullying, in other words, works. But perhaps not without giving creative punk venue owners the last laugh.

Mr Bodiam said The Reverence would continue selling tacos on Tuesdays, but the night is now listed on its site as “Taco Sueday”.

Bravo, sir.

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