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Wednesday, October 23, 2013

Trademark Controversy: Is It Really "Food For Thought"...Or Just Canny Self-Promotion?

Timothy Fitzgerald Young is the founder, President and Chef of Food For Thought, Inc., an Honor-based creator of organic and wild-harvested gourmet specialty foods.

And from Miss Fortune's perspective, a marketing genius!

Taking his cue from a newly-launched Huffington Post section also dubbed "Food For Thought", Young has asked his Food For Thought supporters to aid his fight against what he calls "blatant trademark infringement" by HuffPo and its partner, Chipotle Restaurants. In a blog post, Young  appeals for help:
Dear Food For Thought Friends:

We need your help!

A large corporate entity is infringing on our trademark. It does not make it easier that they are an entity I respect, and it is for a good cause. It is infringement just the same. The Huffington Post and Chipotle restaurants have joined together to launch a blog called Food For Thought.  

They have ignored our trademark and the facts that we have a blog, FaceBook (sic) page, and more under this name.  I obviously cannot afford to mount a legal challenge against such deep corporate pockets, so I am appealing to you to help me appeal to them. 

Please post on their blog that, while you support their effort to raise awareness around just and sustainable food (our mission), you do not appreciate them using our name and likeness. Can you please post on their blog here:

http://www.huffingtonpost.com/arianna-huffington/food-for-thought_b_4127786.html, and because they may not publish your critical blog post, you can email Arianna Huffington directly: arianna@huffingtonpost.com

But is it really "trademark infringement" or just another David-versus-Goliath marketing ploy?

Miss Fortune reviewed Food For Thought's official United States Patent and Trademark Office record, and may have found the answer.

In its original trademark registration application (an excerpt is shown at left), Food For Thought requested the use of its mark for "private label processed foods" in classes 29 and 30. Class 29 is "meats and processed foods" and class 30 is "staple foods".

Records indicate the registration currently remains in force only for those two classes (below):

So, does it look like there was a "trademark infringement"?

Not to Miss Fortune--but I'm not an attorney, and never even played one on TV!

And if underdog Timothy Young really wants to fight those overdog "Goliath corporate attorneys", he'd file a trademark infringement claim. There's a stack of paperwork in Washington that proves Young knows his way around an attorney's office.

Nice try though, Tim. 

You even got Miss Fortune to write about you (love that Cherry Salsa Atento!).


  1. Miss Fortune:
    Thank you for taking a look at this. Trademark is a complicated body of law and you are not alone in sharing many common misunderstandings. I've been up to my eyeballs in trademark for over a decade and I'm still learning. I'll address just a few of them here.
    Your trademark rights do not stop at your particular registration classification. Anything that would cause customer confusion can be considered infringement. If you started a blog discussing the beverage industry and called it, The Coke Blog, you would be in violation of Coka Cola's trademark rights whether they trademarked in a classifications covering blogs or not.
    Secondly, As outlined in the Lehman Act, common law trademark protects all uses "first to market." You do not have to register to be protected by this law. I've had a blog in publication that covers the same topic as HuffPost/Chipotle for over 10 years.
    Thirdly, I have additionally protected the Mark (logo). If you look at the logo comparison published on my blog you will see that it was a clear infringement on how those words were displayed. Additionally withing 24 hours of posting a professional font analysis online, HuffPost/Chipotle redesigned their logo.
    Finally, one could litigate. That's an option. However, to date, I've had success simply contacting violators and simply coming to an agreement. I've rarely had to issue a cease and desist letter. Besides this more an issue of business ethics. HuffPost/Chipotle have the SEO power to banish my Food For Thought and all the other legal users to the dark shadows of the world wide web. I'm holding out hope that they will see that they've made an error and simply change the name. They certainly have the creative resources to do this, rather than build off the reputation of others.
    Please consider reading my blog for further information. There are even comments by lawyers that shed further light on my case.

    1. The Lanham Act states "Any person who shall, without the consent of the registrant ... use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive ... shall be liable in a civil action by the registrant".

      The key phrase--"likely to cause confusion"--is truly at the heart of this ginned up "controversy". And after reading comments on your blog and reviewing additional trademark-related legal actions, my opinion remains unchanged.

      Here's why: a trademark protects brand names, slogans and other symbols used by businesses to differentiate their products from those of competitors. In order to determine when a trademark owner will be
      protected against the use of a mark, on a product which has not been approved by the trademark holder, courts must determine the likelihood that “an appreciable number of ordinarily prudent purchasers are likely to be misled or confused as to the source of the goods.”

      As your trademark was issued for two classes of processed foods, there is little chance that any consumer aware of your products would confuse a Huffington Post/Chipotle cross-promotion with your tasty treats.

      And since HuffPo has already refined the logo's design, it looks to me like your effort was successful.

      Now get back in the kitchen and make some more Cherry Salsa Atento!

  2. Oh...and have you tried our new Blueberry Salsa! It's my new favorite.

  3. Miss Fortune - Please continue your research. Next Lesson: Read about "common law trademark." You may be too stubborn to change your mind, but you will certainly know a lot more about trademark than when you wrote your opinion the first time around. I might suggest reading the post on my blog by Enrico Schaefer of Traverse Legal, a firm that specializes in intellectual property. His comment can be found on the same post to which you based your opinion. I've still got a lot to learn on this subject, but I'm well beyond questioning my legal, or ethical position in this matter.

    1. Well said, sir!

      Turning a trademark tempest-in-a-teapot into a winning PR gambit shows intellectual ability far above Miss Fortune's pay grade.

      May I suggest a Food For Thought product in honor of Miss Fortune--Organic Sour Grapes Preserves!