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Trademarks Making Advertising Claims Create Sticky Situations
A brand that uses its trademark as an advertising claim may find itself in a sticky legal situation. A recent case before the National Advertising Division of the Better Business Bureau (NAD) evaluated SharkNinja's "Foodi NeverStick" cookware's trademark and advertising claims. The case illustrates the complexity of using a trademark that describes product attributes.
Brands are accustomed to clearing trademarks to determine whether they violate a third party's intellectual property. To that end, they may request their trademark attorney evaluate trademark searches and advise regarding the mark's availability for use and/or registration. In so doing, their counsel will consider the proposed trademark's distinctiveness as well as any likelihood of confusion it creates in the marketplace. A third factor for evaluation may also be relevant. Could the trademark also be an advertising claim? Does the trademark convey a false or misleading express or implied claim about the product or service?
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