Peter Jaros wrote:
On Apr 29, 2004, at 1:32 AM, Michael Snow wrote:
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.
Sort of like "fair and balanced?"
Trademark protection is not available for merely descriptive terms, or
for deceptively misdescriptive terms. So regardless of whether you
actually believe this particular network's slogan, it shouldn't be a
trademark, right?
As it turns out, "fair & balanced" is a registered trademark (actually a
service mark, since news broadcasts are a service and not a commodity).
One thing I neglected to discuss is that descriptive terms can become
trademarks if they acquire "secondary meaning". This pretty much means
that the term becomes so closely connected with the product or service
that the public automatically associates the two. You may note that I
have been coy about identifying the owner of this mark, but I expect
that most people reading this have already recognized that it belongs to
Fox News. I think that illustrates my point about secondary meaning, and
gives Fox a decent argument for trademark status.
Anyway, this prompted me to look up whether Pepsi has actually filed
"light, crisp, and refreshing". Well, they have, but only as part of the
Diet Pepsi logo, and in this filing they disclaimed any exclusive right
to use "light", "crisp", or "refreshing" aside from the
logo. I don't
think Pepsi would have a good argument, because when I read the phrase,
I don't immediately think of Diet Pepsi. But Pepsi does have a
registered trademark for "SO LIGHT. SO CRISP. SO REFRESHING."
--Michael Snow