FRESH FRENCH FRIES! The State Fair Brand Defying the ‘Generic’ Trademark Rule

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Another Minnesota State Fair was recently wrapped up. Although some of the days were tremendously hot and humid, Minnesotans stayed true to “The Great Minnesota Get-Together.” Over 1.8 million attended, putting 2023 attendance in the all-time top 10. With a state population of 5.8 million, about 31% of the state’s residents attended (assuming each resident only came once).

Both of us visit the state fair each year, not only for the food but for the people watching, herding children, concerts and, of course (since we are trademark attorneys), viewing what brands venders use to promote their products.

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What concessioners use to promote foodstuffs is always interesting. According to one website, there are about 300 food concessions at the Minnesota State Fair. Even though a tremendous number of people attend the fair, the time each person spends at the fair is usually limited to probably about four to eight hours – to hit all the exhibits, rides, entertainment and other attractions. There is really very little time to decide which food concessions out of the 300-plus to spend your time and money. There is also the “But I’m full!” limitation that each individual’s body imposes even when the goal is to feast. Fatigue from plodding through a shoulder-to-shoulder mob of others all seeking culinary adventures also limits how many edibles a person can consume.

On a Stick

An additional quandary are the food concessions themselves. Cookies, chocolate and everything else that is sweet and full of calories are major options, as well as virtually anything imaginable that can be sold on a stick – hot dogs, alligator, olives, beer, pickles, mac and cheese, key lime pie, and even a spaghetti and meatball dinner. Then there are the standard American outdoor event commodities – turkey legs, hamburgers, ice cream, mini donuts, etc.

So how does a single concessionaire stand out in this mass of indulgent Minnesotans? As we have written many times, there are five trademark types – generic, descriptive, suggestive, fanciful and arbitrary. These categories are based for the most part on protection of one’s trademark. However, trademarks are also chosen to attract first-time purchasers. In a state fair situation, there is little time to build up goodwill; immediate brand distinction is paramount.

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Of course, there are concessions that have well-recognized brands, such as GIGGLES and MANCINI’S for restaurant services, and PRONTO PUPS and MARTHA’S COOKIES for specific edible treats. Most that come to The Great Minnesota Get-Together recognize these brands, since they are either distinctive or fanciful and/or have developed recognition.

But how does a concessionaire distinguish its mini donuts or turkey legs from another vendor’s in a tight time frame, while also letting the potential purchaser know what the product is? Puffery is one way. The ORIGINAL MINI DONUT or the JUMBO TURKEY LEGS are examples of puffery at the state fair. Who is to say that the mini donuts are not “original” or that the turkey legs are not “jumbo?” Puffery is intended to promote a positive feeling.

Fries

One especially intriguing brand at the state fair is FRESH FRENCH FRIES. Everyone who has gone to the Minnesota State Fair knows which concession this is. However, as a trademark, FRESH FRENCH FRIES is a generic phrase. It tells the purchaser what the product is and an attribute of it – it’s “fresh.” Yet at the state fair it is a distinctive brand. Why is that? Whether it was planned or it simply came to be, the brand FRESH FRENCH FRIES is placed within a bold background of broad red and gold stripes. It is positioned on the façade of the concession stand and an awning that provides shade over the buying counter in lettering that can be seen from almost any distance when the view is not obstructed.

The FRESH FRENCH FRIES brand defies a basic rule of trademark law that an effective trademark mark cannot be generic. In this case, rules are rules – until they’re not.

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Z. Peter Sawicki and James L. Young

Mr. Sawicki and Mr. James L. Young are shareholders at Westman, Champlin & Koehler. Pete and Jim both have over 30 years of experience obtaining, licensing, evaluating and enforcing patents. Each has also developed an extensive practice regarding the clearance, registration, licensing and enforcement of trademarks. They work closely with clients to understand their values and business plans and provide customized and effective strategies for intellectual property asset procurement, growth, management and protection. To contact Z. Peter Sawicki, call (612) 330-0581 or call James L. Young at (612) 330-0495. Please email them directly at either [email protected] or [email protected].

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