“Merely Laudatory” Trademarks: Super Amazing Coffee!
Some terms are not registrable on the Principal Register because they are “merely laudatory.” What does “merely laudatory” mean? It means that the trademark describes some quality of the goods that is descriptive of the fine qualities of the goods.
Here, the mark is SUPER AMAZING COFFEE, which is meant to describe the excellence of the coffee. It’s super! It’s amazing! It’s coffee! And unfortunately, it’s “merely laudatory.”
Why does this matter? It matters because you won’t be able to register it on the Principal Register; it will go to the Supplemental Register for at least 5 years, until the Applicant can apply to move it to the Principal Register. Marks on the Supplemental Register have less ability to claim that their mark is “distinctive,” and therefore a harder time enforcing their trademark. Why? Because everyone who makes coffee has the right to say that their coffee is super and amazing.
Transcript: Today I want to do a case study today about something I saw in my Facebook news feed.
It was an advertisement for Super Amazing Coffee. And I looked at that and I thought, that’s just funny and it would make a good case study. So I want to talk about merely laudatory trademarks. A merely laudatory trademark is a trademark that extols the virtues of the product to which the trademark is being applied. It’s about how wonderful the product is, or how fantastic it is, or how super it is or how amazing it is, or how great it is. Those are all laudatory terms that sometimes people apply to their goods and they use them as trademarks.
Those types of trademarks fall under this umbrella of marks that we say are “merely descriptive” of the goods. A merely descriptive trademark is a trademark that tells us something about the goods, the end user of the goods or some quality of the goods. Here the quality that we’re talking about is how wonderful the goods are. The coffee is super. It’s amazing.
Unfortunately, it’s also merely descriptive because it extolls the virtues of the product in a laudatory manner. So what import does this have? Why do we care? Well, when you have a trademark that is merely descriptive, if you just started using it, you will not be able to register that trademark on the principal trademark register. Recall that we have two registers. There’s the principal trademark register and the supplemental trademark register. If your mark is on the supplemental trademark register, it lives there for at least five years.
After five years of exclusive and continuous use, you can apply to move it to the principal trademark register. While the mark is on the supplemental register, it’s really hard to enforce your exclusive right to use whatever term you’ve registered on the supplemental trademark register, because by registering it on the supplemental register, you have in effect admitted that your mark is not distinctive.
In the case of SUPER AMAZING COFFEE, it’s not registrable on the principal trademark register because by allowing that, the USPTO would grant them the exclusive right to the words SUPER AMAZING COFFEE, and other coffee makers deserve the right to describe their coffee that way, too. We don’t grant full trademark rights, full, enforceable trademark rights to these merely laudatory or merely descriptive trademarks, because we want other people to be able to fairly describe their goods and services.
Everybody should be able to say that their coffee is super. Everybody should be able to say that their coffee is amazing. So we don’t want to give people a monopoly, which is what a trademark is, on those words that are being used to merely describe the goods or services.
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