The yogurt company Chobani has been served for three letters and a tweet.
Chobani and their advertising agency Droga5 are being sued by author Dov Seidman for using “how” in their “how matters” campaign blitz that started during the Super Bowl and continued during the Olympics. According to the suit,
Chobani’s launch featured extensive social media and other branding and promotional activity attempting to promote ethical corporate behavior through heavy emphasis on the word and mark “HOW” and the HOW-derived “How Matters.”
Seidman is alleging that people are confusing the Greek yogurt for his business education book “How” and goes on for ten pages of suit about how successful his book is. While Seidman does have a federally registered trademark for “How” when it comes to all things business, he claims that Chobani infringes on the philosophy and ethos of his brand when the yogurt’s tagline transformed from “How Matters” to “How we built our company matters.” and “How we make our product matters.”
This all sounds a little silly because a yogurt company trying to sell how socially conscious and nutritious they are doesn’t have much overlap with a guy in the advice business. Also, Chobani holds a federal trademark for “How Matters” for dairy products.
In a statement to AdWeek, a Chobani spokesperson pointed out that “Numerous other companies use phrases including the word ‘how’ in connection with marketing language and corporate social responsibility phrasing, and Mr. Seidman himself argued to the trademark office that there is no likelihood of confusion in circumstances similar to these.”
Also, Seidman’s book title doesn’t use the phrase “How Matters,” which ended up being a popular headline used by the press when talking about his book.
All of this seems like a bizarre case of trademark bullying where David attempts to battle Goliath (or Chobani, in this case), as Steve Baird of Duetsblog describes similar situations.
[Trademark bullying] does occur, but in the grand scheme of all trademark enforcement matters, the instances of actual bullying and abuse seem to be rare.
At the other end of the spectrum are those also rare but highly publicized trademark cases where David takes on Goliath, and asks for a lot of money, because Goliath has very deep pockets.
A similar dispute is the Pi fight where an artist wanted Zazzle.com to stop selling shirts with the ancient math symbol.
HOW™ do you defend limited use of an ubiquitous symbol or word? According to Bill Farrell of Trademarkology,
Generally speaking, the strength of a mark (and whether it can be registered) depends on its distinctiveness, that is, how descriptive the mark is of the goods and services. The more descriptive, the weaker the mark.
It would be easy to brush off Seidman’s suit as silly, if Chobani didn’t tweet about it.
While inspiration doesn’t necessarily mean infringement, imitation is the sincerest form of flattery.