Beyond The Taco: Someone Is Now Trying To Trademark 'Breakfast Burrito'

from the a-burrito-trademark dept

This very morning, I paid $5 for a breakfast burrito at a place near where I work. To be frank, I regret to say that it was ultimately disappointing. How in the world do you construct a steak breakfast burrito that lacks salt? The great news for me is that there are roughly a gazillion places around me that also advertise breakfast burritos, so I currently have other places to get them. The bad news, however, is that someone out there is taking a run at trademarking "breakfast burrito", so that might not be the case in the future.

Recently, the Twitter account for Timberlake Law—a North Carolina based specialist in trademarks and copyrights—posted a link to the United States Patent and Trademark Office's website for an application to trademark the term "Breakfast Burrito."

Though most people will inherently sense that this seems ridiculous, Timberlake does a good job of spelling out the reason: "While it's true that the drawing and specimen should match, the mark and the goods shouldn't," the tweet explains. To put it another way, the application seeks to trademark the phrase "Breakfast Burrito," but in the section where the applicant explains what the trademark is for, the answer is "Breakfast burritos; Burritos." Basically, if the only way you can describe what you're trying to trademark is by using the same phrase as the trademark, then there's a solid chance that the phrase is common enough that it can't be trademarked in the first place. It doesn't take much legalese to understand that.

Put more simply: a trademark can't be for the generic name of a product or service. This should be obvious to all, as the point of trademark law is absolutely not to narrowly limit the choices consumers have for a given product or service. Still, this concept seems to elude some people.

The whole thing should remind you of the whole "Taco Tuesday" fiasco that is continuing to date, where Taco John's somehow got a trademark for a phrase that describes serving people tacos on Tuesdays. In fact, that analogous trademark issue is useful as a marker for how the Trademark Office is complicit in fostering an environment in which people think they can trademark something like "breakfast burrito."

As to who is actually trying to do so in this case, it's something of a mystery.

So who exactly wants the rights to eggs wrapped in a tortilla in the morning? Eater attempted to get to the bottom of this application and, unsurprisingly, didn't get very far. The site "reached out to the person listed on the application," whose address "matches that of a personal injury law firm in LA," but "did not hear back on requests for comment made over email and the phone by press time."

So what's this all amount to? Likely very little. Anyone with a few hundred bucks can attempt to trademark anything. Receiving a trademark and then protecting it is far more difficult, and based on the assessment of Timberlake and findings of Eater, this attempt to register "Breakfast Burrito" appears to be a random shot in the dark.

A shot that should, and likely will, fail. Still, we have a Taco Tuesday trademark, so how much of a stretch is it to see the USPTO rubberstamping one for "breakfast burrito" as well?

Filed Under: breakfast burrito, burrito, taco, trademark


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  • icon
    Ehud Gavron (profile), 17 Dec 2019 @ 7:41pm

    Living in a border town... we know they should fail.

    I live in Tucson, Arizona, north of Nogales (AZ, MX). Still within the CBP 100 miles of lawlessness, but hey, 9/11.

    Burritos are literally "tortilla with stuff". They originated in Mexico, along with the tortillas. If you ate one for breakfast you had a "breakfast burrito." Big hint: North Carolina hasn't invented any food ever. (Hint: google search "north carolina indigenous cuisine" and then remove Krispy Kreme and other national chains and you'll end up with nothing.)

    So there's that. It WAS USED PREVIOUSLY prior to the existence of the whole state. That already disqualifies it from being a trademark.

    Second, it cannot generically describe the product... but then YES, THAT'S EXACTLY WHAT IT DOES!!! It's a freakin' breakfast burrito. That ALSO disqualifies it from being a trademark.

    I suppose I should add the "confusion in the marketplace" thing -- except when you have a PREVIOUSLY EXISTING THING that EXISTS EVERYWHERE ELSE and is not UNIQUELY IDENTIFIED then expecting people to think it came from NorthCarolinaCo vs say Taco Bell... is unwise.

    Ding. Fries are done.

    E

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 18 Dec 2019 @ 6:49am

      Re: Living in a border town... we know they should fail.

      North Carolina isn't where the trademark is being filed, it's where the warning about the trademark came from. If you check, the trademark is out of Los Angeles, California.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Dec 2019 @ 8:25pm

    This reminds me of the doofus who managed to trademark the phrase "Try My Product" [tm].

    The trademark was eventually cancelled, but not before a lot of rather frivolous legal threats, including one against the publishers of this (obvious joke) article: uncyclopedia.ca/wiki/John_Scherer

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 17 Dec 2019 @ 9:20pm

    I'd like to trademark "Trademark Troll" ...anyone wanna lend me some money? I'll go halfsies with you on the fortune we're bound to rake in!

    reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 17 Dec 2019 @ 9:34pm

    Trademark "Trademark Troll"

    1. Patreon
    2. You set that up you got my $50 (It's not $50 million, but it's crowdfunding and it's the holiday season)

    E

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Dec 2019 @ 11:16pm

    "B-b-b-b-b-but," John Smith stammered, his lip trembling with uncontrollable rage, "If trademarks aren't respected then who would ever eat food? Supermarkets are IP-intensive industries!" He fell to his knees, pounding the ground. "Mailing lists! Defamed the president! Financial advice! Card counting! Secondary liability!!" Tears poured down his face as he screamed at the sky. "Oooooh, curse you Masnick! You'll pay for this!!"

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 18 Dec 2019 @ 1:55am

      Re:

      Masnick seems to think having an army of lawyers and Aspies just to make fun of me is hilarious. Of course, he digs the grave for Section 230 and paints a nice trail to follow to the Silicon Valley tech douches and defamation lawyers running this criminal enterprise.

      Who'd you get this time, Mick? PaulT? Stephen Stone? Oh, I know. It's White, isn't it? Or Booth and Sweet?

      When the sauce gets put on this gander, Masnick, you'll wish Shiva had blown up your piracy apologism cesspool isntead of me. You think Rose McGowan had it bad. I'm going to rip open that pretty white boy asshole so wide it'll send that shitstain wife and kids of yours to China.

      Just you wait.

      reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 18 Dec 2019 @ 1:06am

    You're doing trademarks wrong when an episode of Beavis and Butthead can be used as prior art against your application.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 18 Dec 2019 @ 2:29am

      Re:

      But, isn't half the problem that nobody really bothers to look at prior art until someone complains, which is why so many obviously bad trademarks are getting through?

      They're not doing it wrong if they can profit in the time between the trademark being approved and the time it's thrown out.

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 18 Dec 2019 @ 6:53am

        Re: Re:

        I was under the impression that prior art was a thing in patents, not trademark. I suppose it could be a thing in copyright (aka plagiarism) but no impact on trademarks.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Dec 2019 @ 8:55am

          Re: Re: Re:

          Prior art is not relevant to trademarks per se, but trademarks are supposed to be granted to marks which specifically distinguish your product in your market. A mark which is commonly used in your market is very unlikely to distinguish your product from others, and therefore shouldn't be granted. A mark which is common in other markets, or in the general public consciousness, may also run afoul of this principle if it's unlikely to differentiate your product sufficiently to be recognizable.

          Copyright actually has no prior art requirements at all (plagiarism is an academic/ethical issue, but not any kind of legal problem). However, if your work is close enough to a prior work to be considered an example of prior art, then it may be considered copyright infringement for you to distribute your work or enforce your copyright against the distribution of the prior work or any other works covered by the copyright of the prior work (you do technically still own a copyright, it's just not possible to enforce it on anything).

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Dec 2019 @ 12:57pm

          Re: Prior Art

          Patents have "prior art" because they are treated as all-inclusive descriptions. A valid patent covers any device that it accurately describes, with essentially no exceptions.

          If you have a patent on A, that covers not just A but AZ, ABC, ABCDEFG, APPLE, BANG, and COWABUNGA. If AZ, ABC, ABCDEFG, APPLE, BANG, or COWABUNGA existed before you tried to patent A, you're out of luck -- that's prior art of A in use. (This is also why overly broad patents are so handily abused.)

          But trademarks, like copyright, are not so cut and dry. There's many categories of potential fair use, such as transformative use, parody, independent genesis, research, and non-competition. And on the other side, there are many types of "similar" or "derivative" works that do not include the actual thing you've copyrighted or trademarked, but are still close enough to be infringing. This means that there can't be something as hard-cut as "prior art", per se.

          Another aspect is that patents do not exist prior to registration -- your application must be approved by the Patent Office before you have any rights regarding that patent. But both copyrights and trademarks have limited rights from the moment you first create or use them, respectively. They needn't be registered anywhere to have some protection, which means there's no easy comprehensive place to search through them all and see when and where and what they are being used for.

          reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 18 Dec 2019 @ 6:55am

        Re: Re:

        We've seen people say this specifically about patents, and it's the same department, so it wouldn't surprise me at all if that wasn't the unofficial policy. Besides, it keeps lawyers employed, and that is the primary purpose of Law - keeping lawyers fat and happy.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 18 Dec 2019 @ 2:48am

    'Here at the USPTO we can always make things worse.'

    A shot that should, and likely will, fail. Still, we have a Taco Tuesday trademark, so how much of a stretch is it to see the USPTO rubberstamping one for "breakfast burrito" as well?

    Given this is the USPTO we're talking about unfortunately I have very little trust that they won't screw this up and hand out the trademark, because after all handing out ridiculous trademarks that never should have been granted is kinda what they do.

    reply to this | link to this | view in chronology ]

  • icon
    Code Monkey (profile), 18 Dec 2019 @ 5:59am

    ....better idea

    Ima copyright the word "Food". Then, anyone who uses the word will owe me royalties!!

    You blog about food. Cha-ching
    You write a cookbook. Cha-ching
    You buy food at the store. Cha-ching

    Ima order my new Porsche right now :)

    </sarcasm-mode-disengaged>

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2019 @ 6:28am

    Can I trademark the word trademark and then stop anyone from getting a trademark?

    reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 18 Dec 2019 @ 9:47am

    USPTO locations and food

    As someone corrected me, the trademark was filed in Los Angeles CA. I'm guessing it will go to the nearest office - San Jose CA.

    It's my guess that somewhere in the process between opening the application and reviewing it, some examiner or his supervisor will be actually eating a breakfast burrito, and will laugh his/her ass off and use the big DENY button.

    At least one can hope.

    E

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2019 @ 9:58am

    Brekarito - a 'named' Breakfast Burrito trademark name...

    Now there is a name that could be trademarked (copyright, all rights reserved, if you use it I get 50% of all profits) that roughly describes the product...

    Hey it could catch on...

    reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 18 Dec 2019 @ 10:06am

    "The overall purpose of trademark law is to prevent unfair competition by protecting the use of a symbol, word, logo, slogan, design, domain name, etc. that uniquely distinguises the goods or services of a firm."

    I think you can safely say that since breakfast burritos are sold everywhere, by restaurants, food trucks, local urchins, etc., the Brekarito wouldn't be a "uniquely distinguished" good anyone cares to pay extra ... meaning 50% of $0.00 ... is ... $0.00 :)

    E
    P.S. This is why trolls are so detestable... they pretend the trademark prevents anyone else from making _the_product_or_service... not that it uniquely distinguishes THEIR version of same p_or_s.

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 18 Dec 2019 @ 10:18am

      Re:

      There is also the issue that getting a trademark doesn't prevent the use of that trademark so long as it is correctly used to identify the specific product, service, or source thereof the mark refers to.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2019 @ 10:28am

    Different "property", I know, but this story reminds me of the attempt to patent the peanut butter and jelly sandwich. It is similar in that they both address common every day things as though they were special.

    "It is a sticky case that has critics decrying the state of the U.S. patent system. They say that protection for common things such as operating call centers or the method of moving side-to-side on a swing -- both patented in recent years -- are stifling innovation and increasing product costs for consumers."
    https://www.wsj.com/articles/SB111266108673297874

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2019 @ 12:27pm

    Ultimately the problem isn't the USPTO. It's Congress. Congress sets the tone for what the rest of the government does, how it does those tasks, and how much money they can use doing it. Ultimately you have a system that doesn't penalize frivolous filing, but instead encourages those with deep pockets to keep filing till they get assigned to the right overworked clerk who no longer gives a damned and just rubber stamps it. Then you end up in court, with more deep pockets squared off to squander yet more money in an over burdened federal court system.

    If you want to point the finger point it where it does the most good: Congress. Congress and the politicians that run it need to grow a pair, and the people that keep reelecting the same career politicians need to go back to high school civics class and learn how their government works. I'm all for state boards starting to mandate the US citizenship exam before passing people out of high school. Immigrants to the US know more about how our system of government works than our own birth-native citizens. It's appalling.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Dec 2019 @ 1:06pm

      Re:

      I'm all for state boards starting to mandate the US citizenship exam before passing people out of high school.

      Or, better, as a requirement to vote. Only need to pass the test once, just like anyone who becomes naturalized. If you're going to help decide how we should do things in the future, it's in everyone's best interest for you to understand how we do things now, and especially why we do them those ways.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Dec 2019 @ 3:05pm

        Re: Re:

        "as a requirement to vote"

        A literacy test? What is next on your list ... a poll tax?

        Perhaps it would be for the betterment of society if everyone were educated but to make it mandatory will not bring about the desired result.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Dec 2019 @ 3:01pm

      Re:

      "I'm all for state boards starting to mandate the US citizenship exam before passing people out of high school. "

      When did they stop requiring students pass civics class?

      reply to this | link to this | view in chronology ]

  • identicon
    TRX, 18 Dec 2019 @ 1:18pm

    lacks salt

    Where are you, that salt is even a thing?

    In my area the little salt/pepper stands in restaurants only have pepper. If you want salt, you have to get a waiter, who will eventually return from the kitchen with two or three shopworn packets containing a small pinch of salt in each.

    Heroin or cocaine, the other white powders, are marginally acceptable, but SALT... only a lunatic would use that.

    When eating out we usually bring our own, now.

    reply to this | link to this | view in chronology ]

  • identicon
    bobob, 18 Dec 2019 @ 7:21pm

    Oh, great... So now I'm infringing on a trademark if I ask my gf if she'd like a breakfast burrito.

    reply to this | link to this | view in chronology ]


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