Fast food goliath Taco Bell has filed an appeal with the US Patent and Trademark Office to cancel the federal trade mark ‘Taco Tuesday’. The mark is owned by Wyoming-based rival taco franchise Taco John’s, who has utilised the well-known phrase since 1989.
Taco’s Johns has earned a reputation through the years for its staunch defence of the trade mark, routinely sending cease and desist letters to any who dared to use the phrase in their own restaurant. Taco John’s is a comparatively small franchise relative to Taco Bell, with around 400 locations (all in the US) in comparison to Taco Bell’s 7,200 locations both in the US and internationally.
Taco Bell contend that the Taco Tuesday mark has lost its distinctiveness and has become too commonplace to be exclusively used by Taco John’s. In a recent press release, the company stated “Taco Bell believes ‘Taco Tuesday’ should belong to all who make, sell, eat, and celebrate tacos. How can anyone Live Más if they’re not allowed to freely say ‘Taco Tuesday’? It’s pure chaos.” Taco Bell also implored its customers to sign a petition in support of their campaign against to liberate the mark.
There is always a risk that a trade mark may become a victim of ‘genericide’, whereby the mark loses its distinctiveness over time through common use and acquires a more generic meaning in the minds of the general public. Notable brands such as Hoover, Frisbee, and Jacuzzi have all fallen foul of this in the past. This highlights the importance of choosing an inherently distinct mark to represent your brand.
In this instance, however, Taco Tuesday may have become a victim of its own success. Should the USPTO decide in favour of Taco Bell, we will all be free to use the phrase in the US in the course of trade.
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