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:

Heinz Ketchup label

Specifically, the label's marketing wording ends with this:

Grown not made®....
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.

MFD. IN USAAnd 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!


Randy Cassingham is the publisher of This is True, the curator of the popular joke site, Jumbo Joke, and is the founder of Cranky Customer.

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Years ago, I heard of a natural foods outfit that came out with a 100% natural ketchup, and were not allowed to call it ketchup. For some strange reason, they were required to call it "artificial ketchup" because they didn't include ingredients that were (maybe still are) required to be in ketchup.

I look at "Grown not made" then look at all those artificial ingredients that are MADE, not grown.

I was out jogging and came across a poster for Wrigley's new 5 gum called Vortex(tm). On the poster it states "Vortex(tm)...A Juicy Green Apple(tm)". So now Wrigley has trademarked "A Juicy Green Apple" so no one else can ever use it, or say it. (I know, I used it here, so Wrigley is going to sue me). How can companies get away with putting a trademark on an everyday common item?


That's what trademarks are -- an idea applied to a specific product or service. Again, if you actually read my essay, you'll see I don't have any dispute with trademarks as a subject or area of law. I simply think it's STUPID to trademark a phrase just so you can say "No other manufacturer can say that." Well no, they can't: that's how the trademark law works. It's like getting a patent and saying "No other manufacturer can make it the way we do." Of course not: the government made it a law. The point is, if that is the only thing you can say that's great about your product, your product sucks. -rc

Regarding Charles in Florida's comment on HFCS. Sure the molecular structures of two compounds may be similar in vitro but may operate quite differently in vivo. Also, compounds artificially built from their natural progenitors may operate quite differently from each other and their parent source. Think of coca, cocaine and crack.

Regarding sweeteners specifically we evolved with almost no concentrated forms of sugars available for consumption. Some fruits build highly concentrated sugars under certain natural conditions e.g. grapes late on the vine or affected by botrytis. But this availability in the natural world or even early agriculture was severely limited and seasonal at that. The only other somewhat universally available source of concentrated sugars was honey. But again the supply was very small and only occasionally available until just a few thousand years ago. Peoples who early on developed crops with fairly naturally concentrated sugars seem to have developed a tolerance that others outside of their environment did/do not possess. Polynesians seem to have a resistance to the tooth decaying reactions to the sugars of sugar cane but all other peoples get lots of cavities from chewing sugar cane. The same with corn. Anthropologists can trace the spread of green/sweet corn through the up tic of cavities found in the teeth of people as corn became available.

This takes us back to HFCS and the superabundance & super-consumption of this highly refined compound which directly correlates to the up tic of all the health problems we are all familiar with. What this suggests is that it is a combination of something about the compound itself in vivo that we are not physiologically equipped to deal with and our continuous super consumption exacerbating this. Even if all the health problems associated with HFCS are a result of super consumption and not in vivo physiological incompatibilities there you have it. Fruits and vegetables with the sugars fructose and sucrose have them in much smaller concentrations than products with HFCS's and again until our modern era were largely available only on a seasonal basis. Our bodies evolved in this environment of limited seasonal availability. We have turned this on its head where sugars are available 24/7/365. So, no I'm not giving up fruits but I do avoid HFCS as much as possible and limit my intake of refined concentrated sugars. I eat fruit daily but I don't eat ice cream daily and rarely drink our slandered highly sugared soft drinks.

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