Like most holidays, the Fourth of July is inextricably linked with childhood memories, the smell of amazing food, time with family, and yes, even brands and trademarks. While logos and brand names for marshmallows and hot dogs are seared into my memory, the most powerful symbol of this particular holiday (and maybe the most recognized image, and source-identifier in our entire country) can’t even be registered as a mark:
While I certainly could spend this post discussing Section 2(b)’s prohibition on registering marks that “comprise the flag or coat of arms or other insignia of the United States,” it turns out that this is one of the more straight-forward rules in trademark law. Good for consistentcy, bad for blogging.
I still wanted to blog about the symbols of Fourth of July and summer, though. So running through my head quickly, these were the first few thoughts: hot dogs, baseball, fireworks, and ice cream. For me, I don’t just see “hot dogs” when I think of hot dogs. This is the first thing I see:
One thing I certainly don’t envision (and never want to taste) is Oscar Meyer’s 1960s “Sack O’ Sauce in a Can O’ Meat” product. Oscar Meyer hot dogs aren’t even my favorite brand. I’m more of a Wimmers’ guy myself. I love the snap and the flavor of the “natural casing,” and I love that I can mentally block out the phrase “natural casing” while I eat them.
I also thing of Bomb Pops, Black Cat fireworks, Tootsie Roll candy from the parade that you picked up even though you only ate it as a last resort… Looking back at these lasting memories, I can’t help but think that there was something so memorable about these products, other than their taste, that creates such a lasting impression. It’s a similar argument and observation that gets made here and here about the famous(?) Coca-Cola bottle. I can’t help but think that the Bomb Pop design certainly has an argument for a distinctive product:
As far as I can tell, neither Wells Blue Bunny nor their predecessors ever sought trademark protection for this six-finned, red, white, and blue design. However I was surprised to learn that Black Cat had actually received trademark protection for the following:
(Reg. No. 3,228,335)
I am relatively certain that this is the exact same tent where I bought my fireworks in South Dakota, conveninetly located just 27 miles from my Iowa hometown!
Now, while researching the background of trademark for my beloved Bomb Pops, hot dogs, and Black Cats, I came across some interesting ice cream trademark news. I’ll show you the picture and then you guess what the news is:
If you guessed trade dress infringement lawsuit, you win! E-mail me your address and I’ll send you an individually wrapped Tootsie Roll. I think I still have some left over from a Memorial Day parade from when I was 9. Wendy’s has filed a lawsuit, calling the United Dairy Farmers’ product a “complete knockoff.” The lawsuit claims that the “strength and recognition of the famous Wendy’s trade dress and Frosty trademark have led others to try to imitate them to capitalize on the goodwill associated with both marks.” The appropriation, of course, comes from the use of the word “frosties” along with the use of “a confusingly similar red and yellow packaging trade dress.” (Pssst, I think you forgot to mention they both come in a confusingly similar 3-D cylindrical shape!). The mark certainly isn’t generic for an ice cream desert, at least not where I grew up. Who knows about you coastern-ers, though, and also Wisconinites, who call ATM machines “Time Machines.” But the FROSTY mark also isn’t inherently distinctive. And to answer News 9’s addition to misunderstandings of trademark law, yes, you as an individual “can legally say frosty.” Just not in reference to an ice cream treat that you sell in a yellow and red packaging, if Wendy’s has their way.
I think there might be a some legs to the argument regarding the use of Frosty, but the “yellow and red” trade dress doesn’t sit quite right with me. I feel like I have seen this before….
No, not Denny’s…
No, not McDonald’s either…
That’s it! That’s the red and yellow packaging I was thinking of.
Up until now, I hadn’t realized how many food products and services utilize a red and yellow color pattern. Maybe to buck the trend I’ll go back to the old reliable, my childhood favorite, Bomb Pops. They don’t have yellow, but they do have red. And white. And blue.
Happy Fourth of July to you all! Hope you have nothing but sun, fun, and good times with family and friends. Now get off the computer and grill some hot dogs!