In my last blog I talked about how the Trademark Office doesn’t care whether Whole Foods actually is the WORLD’S HEALTHIEST GROCERY STORE. In fact, lots of registered trademarks include “merely laudatory” words or statements, and that’s perfectly OK under trademark law.
Here’s just a tiny sample of the registered trademarks that are laudatory claims:
- The Toughest Name in Tools®
- The Toughest Tournament in the Universe®
- The World’s Toughest Cigarette Machine®
- The Toughest Sport on Wool ®
- The Strongest Name in Rope®
- The Greatest Show on Earth®
- Fastest Oil Change on the Planet®
- The World’s Smallest Exercise Machine®
Why does the Trademark Office allow these? Isn’t it misleading consumers?
First, as I said in my last blog, it’s not the Trademark Office’s job. Vetting the truth of advertising is the job of the Federal Trade Commission.
Second, consumers don’t take these kinds of statements as factual. It’s the kind of harmless “puffery” we expect in advertising. We sense they aren’t meant literally.
Compare those hyperbolic statements to these:
- #1 Doctor Recommended Brand®
- #1 Pediatrician Recommended Brand®
- Stronger than Stainless Steel®
A reasonable person would probably think these have some science, testing, or truth behind them. The coating materials sold by Fused Armor, Inc. better produce something that’s actually stronger than stainless steel in some reasonable comparison, or you’re going to feel like they lied to you.
It does make you wonder then about the application by Kings County Bar to register “Smallest Penis in Brooklyn.” Hmmmmm. Laudatory or true?
We all know the feeling. A newspaper writes a story on a topic we know well and it’s so bad it isn’t even wrong.
The Washington Post headline was “Whole Foods just got called out for a pretty big exaggeration.”
It’s all about Whole Foods trying to register WORLD’S HEALTHIEST GROCERY STORE as a trademark. The Post wants us to believe that the Trademark Office rejected the application because Whole Foods couldn’t prove it actually is the world’s healthiest grocery store.
The US Trademark Office doesn’t care about the truth of a trademark and the Trademark Office examiner never said anything about truth. The examiner challenged the application because:
- the trademark is “merely laudatory”; and
- trademarks that are “merely laudatory” are considered descriptive; and
- descriptive trademarks can’t be registered unless certain other requirements have been met (none of which have anything to do with whether the words in the mark are true).
The Federal Trade Commission DOES care about the truth of advertising claims, but even the FTC doesn’t care about “puffery.” “World’s healthiest grocery store” is an excellent example of puffery.
Bizarrely, the Post went on for paragraphs about how Whole Foods can’t be the world’s “_____est” anything because it didn’t have a significant presence outside the United States. I don’t see why even a single stand alone store can’t objectively be the “world’s ______est store.”
This article was the worst thing that’s ever happened in the whole world.
 With apologies to Wolfgang Pauli.
Here’s the article.
 The Post article said: “The [Trademark Office] said it rejected the trademark because it makes a ‘laudatory’ claim, or is based on exaggerated praise that can’t be proven or has not been proved true.”
 There are some limited situations when the Trademark Office cares about truth. For example, you can’t include a place name in your trademark if it would make people think your product came from that place when, in fact, it didn’t. “Made from California grapes” couldn’t be used as a trademark for a jelly made with grapes grown in New York.
 Puffery is a promotional statement that expresses subjective views that no reasonable person would take literally. For example, see this blog from the FTC.