I'm a burger fan (I eat and blog about them) – and I'm a trademark fan (I eat because of them) – but they don't mix so well. At least not the way bacon and cheddar mix with a fresh-ground patty and a lightly-toasted bun. Perhaps you've seen the billboards and other ads featuring McDonald's new tagline – Who's Your Patty? A bit of whimsy from the Golden Arches to promote its latest attempt at a real burger, the Angus 1/3 lb. (Note to Golden Arches: keep trying)
But the little phrase has led to a federal trademark lawsuit parked right here in Minnesota federal court. Lions Tap (of Eden Prairie), which has used the phrase "Who's Your Patty?" on its menu for the last 4 years, has taken on the big guy. Just another commercial spat over control of a marketing slogan? I guess. But this is not Burger King suing McDonald's (big v. big). This is a rowboat fighting a battleship.
So why the lawsuit? The primary purpose of trademark law has been to protect consumers from being confused and accidentally (and sometimes harmfully) purchasing goods or services from the wrong company. Consider the importance of trademarks in branded pharmaceuticals (such as LIPITOR®). Does Lions Tap (or anyone) really believe burger eaters will be confused and think McDonald's and Lions are one and the same because of Who's Your Patty? Could Lions really be losing sales because of McDonald's use of the tagline?
Another rationale for trademark protection – companies protect the valuable goodwill they develop in brands. Brands drive sales, and if companies let others trample on their brands, the brands won't work. For this reason, companies will sue even if the risk of consumer confusion is low, simply to protect investment. This pre-supposes that a company has developed and promoted a brand, imbuing it with market value. How many Twin Cities burger eaters were aware Lions was using the phrase Who's Your Patty? And how much had Lions done to promote the brand? From public records, it appears Lions did not file for a federal trademark until a few days before the lawsuit (and the whole process to get a trademark can take a year or more).
General reputation is another reason a company might sue. Even if consumers won't be confused and little has been done to promote a brand, companies may not want a phrase they use being associated with a product they perceive to be inferior (burger quality, in this case). BUT – is that point worthy of a lawsuit?
Finally – considering the light tone of the Complaint that Lions filed, this might be their real motive - a company might sue over a trademark simply because it can. This is the Gotcha Theory of Intellectual Property protection. Like suing for a slip and fall that maybe didn't hurt too much. The defendant is just too juicy to leave alone (think Wal-Mart). But I'm not cynical and will assume a valid motive.
Expect the great war over Who's Your Patty? to move toward resolution soon. McDonald's could agree to stop using the phrase. Lions could decide to drop the whole thing. Some money could change hands. If Lions could simply wait, McDonald's will likely be on to its next big promo before they know it (McRib anyone?).
www.ernestgrumbles.com