A New 'Taco Tuesday' Trademark Challenger Approaches: LeBron James

from the bad-defense dept

As we’ve previously discussed, restaurant chain Taco John’s has waged at least a decades-long war to try to pretend that its trademarked term, “Taco Tuesday,” hasn’t become generic. How the chain ever got what sure looks to be a purely descriptive trademark is anyone’s guess, but armed with its trademark the company has since gone after other restaurants big and small for daring to host their own “Taco Tuesdays.” If all of this sounds depressingly stupid to you, well, you’re not wrong.

You really would think the convergence of trademarks and tacos eaten on Tuesday couldn’t get any dumber, except here comes LeBron James. Some background is probably in order. See, LeBron loves tacos. So much so, in fact, that he tends to eat them on many Tuesdays, all while Instagramming his family doing so and affecting a Hispanic accent while shouting about how much he loves Taco Tuesdays. That would have been only mildly interesting at best, except that LeBron’s company has now decided to try to trademark the phrase. Side note: The New York Times should really be better about conflating copyright and trademark law, as you will see below.

On Aug. 15, a company called LBJ Trademarks LLC filed a request with the U.S. Patent and Trademark Office on behalf of Mr. James to copyright “Taco Tuesday.” The company seeks protection for use of the phrase in a host of forums, including “downloadable audio/visual works,” podcasts, social media, online marketing and “entertainment services.” USA Today first reported on the request this weekend.

There are layers of dumb here. First, it seems unlikely that Taco John’s, wielding its own “Taco Tuesday” trademark, wouldn’t be able to claim some level infringement in at least some of these market designations, even assuming the company doesn’t have valid trademark registrations in those categories of its own. But, again, the fact that Taco John’s has those trademarks on a descriptive phrase like “Taco Tuesday” is itself stupid. And, circling back to LeBron, the idea that he would take a phrase already-coined and famous, that he then simply shouted into social media, and then lock it up in a variety of markets is compounding the stupidity.

But just to add a bit more to this, LeBron’s spokesperson basically torpedoed any chance his company has of getting this trademark approved with the following comment.

“The filing was to protect the company from potential lawsuits should we decide to pursue any ideas, nothing of which is in development,” a spokesman for Mr. James said this week on (taco) Tuesday. “It has nothing to do with stopping others from using the term.”

“Should we decide to pursue any ideas, nothing of which is in development” might as well say, “We’re not using this in commerce and don’t have any plans to.” Trademark law requires that the applied for mark be actively used or planned to be used in commerce, or else you don’t get the trademark. Defensive marks like this simply aren’t a thing. If the USPTO is made aware of the spokesperson’s comments, it would be insane to approve this mark.

Meanwhile, the whole Taco Tuesday trademark thing probably needs to just be invalidated to begin with.

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