Authors: Margaret A. Esquenet, Danielle Wright
The word “how” is the center of a trademark dispute between a best-selling author and a Greek yogurt manufacturer.
Author Dov Seidman recently brought suit in the Southern District of New York against yogurt maker Chobani and its advertising agency Droga5, claiming the companies stole his trademarked term “HOW”. In 2011, Seidman authored the best-selling book, “How: Why How We Do Anything Means Everything,” and has for the last ten years helped companies create more ethical cultures, according to a recent article by the New York Times. Reversely, Chobani ─ the nation’s largest Greek yogurt manufacturer ─ has vigorously used the term “How Matters” in marketing materials to illustrate the differences between how its yogurt and American yogurt are made. Chobani sought to cancel Seidman’s trademark for “How” and filed its own trademark application for the phrase “How Matters.” To illustrate that Chobani and Droga5 had knowledge of his use of the term, Seidman points to a Twitter message addressed to him and sent out by Chobani, and a meeting in which the advertising agency was present. In its court documents, Droga5 claims to have never heard of Seidman.
How Seidman uses the term “how” may determine if he in fact keeps his rights. Under U.S. trademark law, descriptive marks, or marks which merely describe the services for which the mark is used, do not receive protection. If however consumers start to recognize the mark as an indication of source, then the mark is deemed to have acquired secondary meaning and may receive protection. According to the forward of Seidman’s book written by former President Bill Clinton, “This is a HOW book, not a how-to book.” But how exactly “how” is used, and any rights attached, will be for the court to decide.
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