If you are one of the more than 50 million people who follows basketball mega star LeBron James on Instagram, you already know how he feels about tacos. Especially tacos on Tuesday.
In fact, James likes "Taco Tuesday" so much that he now wants to trademark it. One of his companies, LBJ Trademarks, LLC, filed to trademark the phrase "Taco Tuesday" on Aug. 15, USA Today reported late last month.
Confused? You wouldn't be the only one. James might have invented that weird thing he does with the hand resin before basketball games, but he didn’t invent Taco Tuesday. How can he own it?
"I think there’s a lot of confusion about what trademarks are and how they function," said Northeastern University Law Professor Jessica Silbey.
For starters, Silbey said a trademark in no way indicates ownership or authorship. That is what a copyright is for.
"A copyright protects the words itself from copying by others and distributing by others when it's otherwise original and fixed," said Silbey.
Think: a book, a poem, a song, or a painting.
When it comes to trademarks, consider the company Proctor & Gamble. They didn’t invent the word "tide," but the company did spend considerable time and money establishing it as a recognizable name for a particular laundry detergent. And that is why they were able to trademark it.
"It doesn’t matter whether you made it or not. It matters whether consumers associate that mark with the good and service that it is attached to," explained Silbey.
Silbey said a trademark provides legal protection for whomever spent all that time and money establishing the association, and it also protects consumers from being duped into thinking they are buying something that they are not. What a trademark does not do, however, is necessarily stop others from using the word or phrase you have trademarked.
For example, the word "delta" been trademarked. Multiple times. By multiple companies.
"There’s Delta Airlines, there’s Delta Dental, Delta Faucet," said Silbey. "All of those are different trademarks for different services and different products."
Since nobody would reasonably expect to see a dentist’s chair or faucet showroom at Gate A14 at Logan Airport, all three companies were issued trademarks.
The issuer and keeper of all these registered trademarks is the U.S. Patent and Trademark Office. And there’s a searchable, comprehensive — if not flashy — publicly accessible database that lists all kinds of details about every single trademark.
"So if I enter in 'Taco Tuesday,'" said Silbey, typing on her computer, "what you see here is a list of 29 applications."
Some were listed as "live," which either means the application is being considered, or it has succeeded and a trademark has been issued. Others were listed as "dead."
Silbey said that just because you put a claim on a trademark, it does not mean you will get it — hence the dead claims. There’s a period of review during which officials consider whether you’ve really established a true and distinct association. And this gives others — especially those who feel your trademark might infringe on theirs — a chance to object.
"A lot of trademark owners go onto the database and the minute something is filed that looks like it could be close to theirs, they’re going to file an opposition," said Silbey.
Those opposition fights can sometimes stretch on for years. As for whether James ultimately gets his trademark or not, taco lovers need not fear. For starters, James is seeking his trademark specifically as it relates to things like social media and web content. And anyway, the term is already trademarked by a restaurant chain based in Wyoming, and that hasn’t kept Tuesdays from being Taco Tuesday in places large and small, all across the land.
