The news cycle’s abuzz about the Dov Seidman trademark infringement claim against Chobani over use of the word how. The USPTO defines trademark as any word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. The standard for trademark infringement is whether the offending mark is likely to cause confusion. Seidman authors and distributes a “How” book series popular with students and business readers including the popular How: Why How We Do Anything Means Everything co-authored with Bill Clinton.
Chobani is a manufacturer and distributor of a popular brand of Greek yogurt carried in most grocery retailers. When it started using how, Seidman complained of infringement. The standard infringement analysis is based upon the Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir. 1961) now often referred to as the Polaroid factors. Although the other Federal Circuits have varied this analysis with tweaks of their own, the following is a good start:
1. The strength of Complainant’s mark;
2.The degree of similarity between the two marks;
3.The proximity of the products;
4. The likelihood that the prior owner will bridge the gap; ( Seidman getting into yogurt business?)
5. Whether there is actual confusion;
6. Defendant’s good faith in adopting its own mark;
7. The quality of defendant’s product, and
8.The sophistication of the buyers.
Although Seidman owns federal trademarks for the “word and mark HOW” that claim to “convey a clear and consistent meaning: that how an organization behaves matters,” I’m not seeing it. My takeaway: The word “How” is not a strong mark. Strong marks are distinctive…such as Apple for a technology products company. How is an interrogative term often used with the 5 Ws, who,what,when,where and why…hardly distinctive. Unless Seidman gets into the business of making or selling yogurt, there will be limited similarity and proximity between the two uses. And… I’m not confused.
Absent factors likely to cause confusion, the Chobani use of “How” in its marketing and selling of yogurt will not be trademark infringement. But, you be the judge and I welcome your opinion and comment.
The information provided in this Blog article is strictly the opinion of the author, general in nature, does not constitute legal advice and is considered Attorney advertising.
William Tennant 