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Intellectual Property

Enforcing taco trademark could become a 'marketing fail'

The well-known term ‘Taco Tuesday’ is merely descriptive and there could be an argument made that it should never have been registered as a trademark, Toronto intellectual property lawyer Taras Kulish tells MetroNews.

The article reports that a Calgary restaurant is involved in a dispute with a national fast-food giant over the term 'Taco Tuesday' — a phrase that the corporation trademarked in the late 1990s.

The fast-food chain recently sent the small business a cease-and-desist letter, asking it to stop using the slogan to promote its half-price taco special. The restaurant tells Metro it plans to comply.

Kulish, a senior lawyer with Steinberg Title Hope & Israel LLP, says an argument could be made that the federal trademark office shouldn't have registered the term because it means exactly what it says: selling tacos on a Tuesday.

He tells the newspaper you can't trademark descriptive terms such as ‘gelato’ or ‘shish kabob.’ In addition, he says a quick scroll through the #TacoTuesday tag on social media sites shows it's become a meme, divorced from any one company's menu items.

Trademarks frequently become generic and legally invalid, Kulish says, pointing to terms like ‘zipper,’ ‘thermos,’ ‘yo-yo’ and ‘escalator.'

Trying to enforce a trademark that is in common parlance can also lead to a “marketing fail,” he says, and turn the public against a company.

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