- January 4, 2013
- Posted by: Seth Heyman
- Category: Marketing & Advertising Law
In a case that supports Americans’ freedom to brag, Dunkin’ Brands Group Inc. recently attempted to trademark the slogan “Best Coffee in America.” Thankfully for every other restaurant proud of its coffee, the U.S. Patent and Trademark Office (USPTO) denied Dunkins’ application, determining that the donut chain’s claim is merely “laudatory and descriptive,” and therefore does not qualify for patent protection.
The donut chain (which does have great coffee) argued that the slogan had a unique association with its restaurants, as it has been featured in Dunkin’s advertising since April, 2006. The USPTO was not swayed, stating that the slogan “is nothing more than a claim of superiority and is so highly laudatory and descriptive of the quality of the coffee featured in applicant’s restaurants, cafes and snack bars that applicant’s claim of acquired distinctiveness, based on five years’ use of the mark in commerce, is insufficient and unpersuasive.” In the past, the USPTO also declined registration of similar laudatory slogans, such as Sam Adams’s “The Best Beer in America” and Carvel’s “America’s Freshest Ice Cream.”
In other words, the USPTO found that the words to be mere puffery; a legal term referring to promotional statements that express subject as opposed to objective views, which no reasonable person would take literally. Words that constitute puffery cannot function as a trademark.
Dunkins’ failure does not affect its ability to use the slogan. It is free to continue bragging about its coffee, but without trademark protection. This means that every other coffee house remains free to use the same slogan to describe their own coffee in their advertising. Had the slogan been more distinctive in its association with Dunkin’, its efforts may have met with success. Something like “Simply The Best Coffee You’ll Ever Taste,” for example, may have worked.
Dunkin’ has the right to contest the USPTO’s finding, but a successful appeal is unlikely, which is too bad for its lawyers, who were doubtless ready to mail out hundreds of cease and desist letters.