No One Else Can Say That!
by Randy Cassingham
Or: Uh Oh, I Read the Label!
This week I ate out at a restaurant -- by myself. I hate eating alone because I always want something to do besides eat. I want someone to talk to, or at least something to read. But I was by myself, and hungry, and once I had caught up with my e-mail on my phone, I was desperate for something to read. I ended up reading ...the ketchup bottle that the waitress put on my table. The wording on the label triggered a Pet Peeve of mine.
Here's what I saw:
Specifically, the label's marketing wording ends with this:
No other ketchup can make that promise.
And why can "no other ketchup make that promise"? Because it's a registered trademark of Heinz! Even if every other ketchup maker does the exact same thing that Heinz describes on their label, they can't by law make the same claim with that or "confusingly similar" wording, because Heinz has a legal claim to that phrase. That's what the "®" at the end of the phrase means.
Records at the United States Patent and Trademark Office's Trademark Electronic Search System shows Heinz filed for the mark in May 2008, and it was granted just over a year later, given Registration Number 3624401. (Well, actually, "ProMark Brands Inc." of Meridian, Idaho, is the registrant, and it appears to have been "assigned" to Heinz, if I read things right.) The phrase is specifically protected only for "Class 30" goods. The PTO (as those in the biz call the agency) shows it was "first used in commerce" on February 23, 2009.
Class 30 is "staple foods" -- everything from Adobo and Alimentary Pasta (yes, really) to Ziti and Zwieback -- as opposed to other kinds of foods, like "meats and processed foods" (Class 29) or "natural agricultural products" (Class 31), and certainly not beverages. The registration shows what part of the class -- ketchup -- it's claimed for.
Now, I want to stress that I'm not against trademarks; I have several myself. No one else can create an Internet newsletter called "This is True", or I could sue to not only force them to stop, but to turn over all profits they made, plus damages, because I own the mark "This is True®". No, what makes me "cranky" about this is that Heinz holds up this simple phrase as being something special because "No other ketchup can make that promise." It's not that other ketchups aren't as good (or even better), but simply there's a legal prohibition against them saying that, because Heinz owns that phrase as applied to ketchup.
And that's the best they can do?! They don't have an actual unique selling point? They have to walk on the crutch of a legally reserved phrase to establish their quality? Sheesh.
But "grown not made" is clearly what they want to be known for. And perhaps Heinz Ketchup is actually "grown not made". But I'll think of it as something else that's shown on that label: "MFD" -- manufactured. And you know what? When it comes to food, I most definitely prefer that it's "made" rather than manufactured!