Gamer Guildhall

While watching some of my favorite streamers on Twitch, I saw a unique ad regarding a literal food fight. No, viands weren't being thrown around in classic cafeteria comedy. It was a legal matter of a lawsuit brought by Taco Bell against the owners of the "Taco Tuesday" trademark. I didn't even know that was a trademarked slogan! It seems Taco Bell is claiming that it is a common use phrase that should be available to all, but is it really as simple as that?

THE SITUATION

According to the Philadelphia Inquirer, the term "Taco Tuesday" was originally coined in 1979 by Gregory's Restaurant & Bar of New Jersey. In 1982 they trademarked the term, but lost the trademark in 1989 due to not submitting evidence to the Patent and Trademark Office that the trademark was being used. Wyoming-based Taco John's, which had also been using Taco Tuesday since 1979, was then able to register the trademark for itself. Litigation ensued and ultimately Gregory's Restaurant & Bar retained ownership of the trademark in New Jersey, while Taco John's continued to hold ownership in all other 49 states. This is a brief summation of research I had done into the matter and the resources that were used are referenced in the link sections.

Something about this story really gripped my attention. On the surface, it is presented as a company stepping up to help the general public. However, Taco Bell is partnered with LeBron James, who has already tried to unsuccessfully register the trademark for his own personal use. With that failed, it seems to me Taco Bell is now trying to diminish and eliminate a competitor's intellectual property asset. This would increase their own advertising capability with the current trademark.

THE SPECULATION

There are plenty of trademarks that are used commonly in public discourse, but Taco Bell is focusing on one that directly benefits its business. For example, "Q-Tip", "Xerox", and "Google" are all registered marks that are commonly used interchangeably to refer to the service they provide regardless of brand, yet no action is taken against them. To further illustrate this point, "Taco Tuesday" and variants are registered marks by additional companies in other uses. However, Taco Bell is not going after any of these other owners whose registered mark is not in direct competition to their restaurant service. This suggests to me a motive that is other than "liberating" the phrase for the good of all taco enthusiasts.

Coming to this conclusion didn't take too much investigative work as Taco Bell has made the following statement on their website:

"Taco Bell wants Taco Tuesday to be free for all restaurants and taco vendors to use without fear of a cease-and-desist letter or lawsuit."

THE SUMMATION

I noted at the start that I became aware of this legal matter via an advertisement on Twitch. That platform is a place where many game-enthusiasts have gone to delve into content creation as a full-time job or income supplement. These are the types of people such a legal precedent could ultimately affect in a potentially harmful way as they seek to build their own businesses. In a digital age, intellectual property is an even greater asset & commodity, especially for those creating in virtual spaces. Ownership is a way to stand out amidst the crowd and amongst competition.

I would close with a word of caution. Suppose "Taco Tuesday" is released as a trademark and becomes a public domain statement. Then suppose in turn the common phrase "dinner bell" is replaced with "taco bell" each Tuesday, turning a franchise name into common usage. Would not the USPTO have to in turn release that name in similar fashion? While this may be far-fetched, the point is that the pendulum swings both ways. We should take care in the precedents we set.