Intellectual Property Law

What started as a protest against France for its refusal to participate in the invasion of Iraq has independent commercial value, at least according to one entrepreneurial company. Sensing an opportunity to capitalize on a burst of patriotic fever in the U.S., a Canadian company (which involves at least a little irony) has applied to register FREEDOM FRIES as a trademark. The Trademark Office rejected the application on the ground that FREEDOM FRIES is merely descriptive ? and thus not eligible for registration ? but the Trademark Trial and Appeal Board (TTAB) recently reversed that rejection.

France?s decision to not join the U.S.-led coalition to invade Iraq in early 2003 sparked a number of protests against France and things French. One form of protest that received a fair amount of publicity was the change by a number of restaurants ? as well as the dining rooms of the House of Representatives ? from calling the classic fried potato strips ?French fries? to ?freedom fries.? One company sought to turn political protest to gold by filing an application to register the trademark FREEDOM FRIES. The Trademark Office denied the application, finding the term ?freedom fries? to be descriptive because the considerable publicity surrounding the renaming of French fries would lead members of the public to think of FREEDOM FRIES as a new descriptive name for French fries.

The applicant appealed the denial of its application. The TTAB considered the numerous news articles submitted by the Trademark Office reporting on restaurants? adopting the name ?freedom fries? ? including, interestingly, an entry on Wikipedia on the origin of ?freedom fries? ? and the menus and articles evidencing the resistance of many other restaurants to using ?freedom fries.? The TTAB noted that although there may have been a ?movement? to change French fries to freedom fries, the effort did not meet with success. Accordingly, the fact that some restaurants elected to call their fried potatoes freedom fries and that these events garnered some publicity was not sufficient to make the term FREEDOM FRIES descriptive. The TTAB concluded: ?we cannot refuse registration on the ground that a term might become generic or merely descriptive in the future,? and reversed the denial of registration.

The TTAB?s decision may reflect that the furor over France?s refusal to follow the U.S. into Iraq occurred three years ago, the anger with the French has largely died down and the reference to freedom fries did not become widespread. Still, the decision does raise the question of how much publicity does it take to make a term descriptive? Should a term such as freedom fries be eligible for registration? Would you eat a French fry today?

Today's Blogger:  Bob Sloss