Michael Snow wrote:
Toby Bartels wrote:
>For example, according to a bottle on my
colleague's desk here,
>"diet PEPSI" is a registered trademark of PepsiCo ("®"),
>while "LIGHT · CRISP · REFRESHING" is merely a trademark ("TM").
>But try marketing /your/ soft drink as "light,
crisp, and refreshing".
>If you don't respond to their inevitable order to cease and desist,
>then they'll register their original phrase, sue you, and win!
>(OK, so IANAL, but I'll still bet that they'd win.)
Pepsi would probably try all kinds of things to make
you stop, but I'm
much more skeptical about whether they could win a lawsuit. Trademark
protection is normally denied for terms that are merely descriptive of
the goods or services involved. I'm not a trademark examiner, but my
conclusion would be that "light, crisp, and refreshing" are simply
descriptive terms, so they can't be a trademark.
"light", "crisp", and "refreshing" are simply descriptive
but "light, crsip, refreshing" is a distinctive phrase used by Pepsi.
So that latter may be a trademark even if the former is not.
Still, since NOUIAL (neither of us is a lawyer), we won't get very far
arguing about whether this particular phrase will work or not.
"TM" is a symbol anybody can use to claim
something is a trademark. No
registration, or even application to register the trademark, is
required. So this is a classic example of the difference between
registered and unregistered marks.
Yes, this was intended to be a classic example of that difference.
But note that it's not the "TM" that makes it a trademark;
according to Wikipedia's articles, it's the /usage/
(as well as the associations in the public mind).
Pepsi has plenty of money, and could certainly file a
application for "light, crisp, and refreshing." So why isn't it
registered, when "Diet Pepsi" is? Probably because Pepsi hasn't filed an
application, and doesn't want to, since their lawyers realize there's a
good chance the Patent and Trademark Office will refuse to register it.
Another possibility: Their lawyers don't see a reason to do so.
You seem to be implicitly assuming that an unregistred trademark
doesn't do Pepsi any good. That is not the case.
(In reality, there is probably a mixture of reasons;
the lawyers don't think that the small benefit of registration
is worth the hassle with the USPTO's scepticism about the phrase.
I suppose that we could write Pepsi and ask them. ^_^)