Can There Be Trademark Rights In The Word “How”?

Can any single person or business obtain exclusive trademark rights to the word “how”?  That is the question posed by an ongoing trademark dispute between the well-known yogurt maker Chobani and the equally well-known author and speaker Dov Seidman.

Mr. Seidman is in the business of helping companies create more ethical cultures.  He has distilled that business to a single three-letter word: how.  Mr. Seidman has written a popular book entitled “How: Why How We Do Anything Means Everything” to illustrate his concepts and teachings centered around the word “how.”

Chobani recently got into the “How” business, too.  The company is in the midst of an ambitious brand campaign intended to highlight the quality of its yogurt and the way it is made, including a straining process that makes it extra dense.  It is built around the phrase “How Matters.”  (Mr. Seidman also uses the phrase “How Matters” in some of his materials.)

Mr. Seidman is not happy with Chobani’s marketing campaign.  He contends Chobani’s campaign represents a frontal assault on the brand that his company has spent 10 years building.  Mr. Seidman alleges that Chobani has misappropriated his “How” trademark and he wants it to stop.  He is suing the company and its advertising agency, Droga5, asking a court to order Chobani to halt the campaign because it represents an infringement on his trademark for the word “how.”

Chobani and Droga5 have responded aggressively, not only denying that they had ever heard of Mr. Seidman — let alone stolen his intellectual property — but also asking the court to cancel the trademark for “How,” saying that it’s too broad. To top it off, Chobani has filed its own trademark application for the phrase “How Matters.”

Trademark law is clear that no one can gain trademark rights in generic words or images.  But whether a particular word or image truly is generic (thereby completely precluding trademark protection) or, on the contrary, whether a particular word or image, although common, can in fact serve as a trademark if the one who uses the word does enough marketing and promotion to create an association in the minds of consumers between the common word(s) and the user’s goods or services is often a difficult question to answer.  The dispute between Chobani and Mr. Seidman is a good illustration of the difficulty of applying trademark concepts when common (and possibly generic) words are used as trademarks.

It will be interesting to see where on the scale the word “who” will fall.  Stay tuned.

For more detailed information about the trademark dispute between Chobani and Mr. Seidman, please see this recent article in the New York Times: http://www.nytimes.com/2014/10/06/business/chobani-and-dov-seidman-wrestle-over-use-of-how-trademark.html?emc=edit_th_20141006&nl=todaysheadlines&nlid=44964334&_r=0

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