Dunkin’ Donuts Learns Trademark Lesson in Puffery

Dunkin’ Donuts recently lost its bid to register the trademark “Best Coffee in America.” The decision highlights that flattery will not get you very far with the U.S. Patent and Trademark Office.

The more technical term is “puffery,” and it generally cannot be used as the basis for trademark registration. Because phrases like “Best Coffee in America” simply tout the product’s superiority, rather than function to indicate the source of applicant’s services or distinguish applicant’s services from those of others, the USPTO generally finds that the trademarks are merely descriptive and cannot acquire a secondary meaning.

In rejected Dunkin’ Donuts’ registration, the USPTO’s examining attorney explained that the phrase was “merely laudatory and descriptive of the alleged merit of applicant’s services and the goods featured therein.” The Office Action further stated, “[A]pplicant’s informational slogan is nothing more than a claim of superiority and is so highly laudatory and descriptive of the quality of the coffee featured in applicant’s restaurants, cafes and snack bars that applicant’s claim of acquired distinctiveness, based on five years’ use of the mark in commerce, is insufficient and unpersuasive.”

In support of the decision, the Office Action also cited Sam Adams’ attempt to register the phrase “Best Beer in America.” In that case, the USPTO also rejected the trademark application, find that “[s]elf-laudatory or puffing marks are regarded as a condensed form of describing the character or quality of the goods [or services].”

For more information about trademark protection, I encourage you to contact me today by phone or email to schedule a consultation.

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