I understand the concept, and the importance, of trademark protection. Like most people, I depend on words to make decisions, and the words used in trademarks—brand names, model designations, specialized descriptive terms—often have more significance than the average. We depend on such things to guide our everyday purchases, and companies often jealously guard the words they have developed into markers for their own products. In that way, trademark protection can protect both ordinary consumers and manufacturers from fraud and misuse. But very often, companies, and the relevant enforcing powers (primarily the U.S. Patent and Trademark Office and the courts), have been known to overreact.
One small example occurred last year here in Albuquerque. A strip-mall bakery opened up under the name Doughboy Donuts, a title the owner chose to honor her grandfather, who was in the infantry in the first World War. The nickname doughboy was commonly used to refer to men who fought on the ground in that war, a carryover from similar usage throughout most of the 19th century. Unfortunately, the name had also been registered by Pillsbury as one name for the puffy little spokeslump that has appeared in their commercials since 1965. That corporate trademark registration conveniently ignored the long previous history of other uses for the term, eventually allowing Pillsbury to successfully sue our local donut shop for trademark infringement, forcing them out of business. We can, perhaps, take some consolation that this year Ohio State University made an attempt to trademark the word “the” (yes, “the” by itself) for their exclusive use in marketing, and thir request was refused.
In the past few years there has been a more widespread questionable use of trademark rights in a variety of sports-related sweepstakes in the fall months in the United States. You probably have seen notices offering you a chance to win a trip to “the ultimate football game” or “the final game of the season” or some other strained euphemism. The operators of these contests have been forced to use such odd circumlocutions because the NFL has trademarked the term “Super Bowl” and refuses to allow use of that phrase in any advertisements that they don’t produce or specifically authorize. This particular trademark registration may have been reasonable, but it has produced two effects that would seem to be counterproductive for the NFL and its message: Confusion in the minds of consumers and reduced promotional references for their singular “Super Bowl”.
Misuse of the concept of protected words, however, may soon be coming to two broader applications, this time related to food. The trade associations representing producers of meat and dairy items are trying to figure out how to respond to the increased competition they’re getting from vegetables. They have proposed new regulations which would prohibit the use of the words “meat” and “milk” for any product that is not produced by a … well, defining a source category may be difficult in both cases. Roughly, they want to limit the use of those words to foods produced by animals.
Admittedly, the consumption of animal meat and animal milk has declined significantly in recent years. This is in part due to increased information from vegetarian and vegan promoters and in part due to competition from alternative products, primarily meat substitutes such as vegetable and soy burgers and the plethora of “milk” drinks made from soybeans, almonds, peas, and oats. For those not inclined to be vegan, these alternative products promise a variety of promotional health benefits, some recognized and some not yet proven. The producers of plant-based “meat” and non-dairy “milk” are getting more creative every day, adding to the anxieties of those who produce the traditional versions.
There are already some types of food name protections that are active today. Margarine was developed to alleviate shortages during the Napoleonic wars in 1869, but the closest it has come to using the word “butter” (as in “corn butter” or “soy butter”, perhaps?) is in the modern product I Can’t Believe It’s Not Butter. In fact, for most of the decades that margarine was available, its producers were prohibited from adding the yellow food color that is now used to mask its natural unattractive whiteness. And for fruit drinks, the use of the word “juice” is strictly regulated. Note: Anything that is labelled “juice drink” most likely does not contain much real fruit juice.
But now the food label police could be coming after two of the staples of the modern diet. I’m not sure I see the point—perhaps it’s simple desperation. Somehow I don’t believe that forcing the makers of soy milk to call their product “white soy drink” or some other non-milk title will stop its devotees from drinking it. In fact, the company that sells Silk soy milk has done quite well despite the fact that the word milk is not prominently featured on its label. So unless the dairy consortium can come up with a deeply unappealing alternative work and can force it to be used—something like vegemurk or soy slurry or something latin-derived like “oleo” for margarine—there doesn’t seem to be any way for them to encourage people to give up the use of alternatives to milk. No offense meant, but the fact is that most of the makers of soy milk and oat milk have already done what they could to make their products as un-milk-like as possible, sweeter and more viscous than the real cow product, and there’s little likelihood that those who drink them are mistaking their pseudo-milk for the real thing.
The same probably can be said about alternative meats, althogh in this case the newest offenders such as the Impossible Burger and the Beyond Burger, are doing their best to make their product as indistinguishable from real ground beef as possible, even at the risk of making them less . Still, we must recognize that virtually all of the options commercially available at this time are being promoted as “burgers”, not as meat. So is the effort to restrict the word “meat” an advance warning against those lab rats who are developing chicken nuggets and solid “real-beef” muscle tissue from stem cells? It will probably be a while before we find out. In the meantime, a trademark registration for “meat” will probably do very little to slow down the transition to veggie substitutes.
There’s also a historical note to the idea of a meat trademark. The word itself is derived, with minimal change in pronunciation, from the Old English word “mete”, a synonym for food. It retains much of this early definition in references to the edible parts of some non-muscular foods, as in references to “nut meats” or the meat of an egg. It also is used to refer to the central portion of a concept or an experience, as in the phrase “the meat of the issue”. The industry that wants to control the word we use to refer to animal flesh, interestingly, is simultaneously applying the same word to something they call “lean finely textured beef” (LFTB) or “boneless lean beef trimmings” (BLBT), a melange of pulverized beef byproducts that is often added to ground beef. If you haven’t heard of this additive, look it up under the less positive term “pink slime”. It is obvious that the representatives of the meat industries are not always acting in the best interests of the consumer.
Our national trademark system is not broken, but there are many cases in which it has been misapplied and misused. Unfortunately, the process is a relatively closed one that we cannot influence directly. We must rely on the views and actions of the appointed leadership of the United States Patent and Trademark Office and the employees they hire to advise them. This is just another example demonstrating that we should be concerned about who we elect as president of these United States.