PhotoIs Whole Foods the world's healthiest grocery store? Well, it might be, but the U.S. Patent and Trademark Office says it is not the "World's Healthiest Grocery Store(tm)."

The USPTO recently rejected Whole Foods' attempt to trademark the slogan, saying it is "laudatory" and based on exaggerated praise that can't be proven.

Now, oddly enough, Whole Foods does own the trademark "America's Healthiest Grocery Store" even though it's laudatory, unproven, etc. But it won the right to trademark that name years ago based on nothing more than the fact that it had been using the slogan for years.

This is sometimes enough for a company to get the rights to a mark it would otherwise not qualify for. This can be maddening for start-ups and smaller companies. 

Micro + soft

Hypothetically, let's say you start a company that somehow blocks drones from flying over a given area. You might want to trademark "No Drone Zone" but chances are, the USPTO would reject you, saying the proposed mark is generic, amounting to no more than a few common words slapped together.

What, then, you may ask of Microsoft? Is it not too common phrases slapped together, representing micro-computer (as they used to be called) and software. Ah, but Microsoft has scale and time on its side. Also lots of lawyers.

Then there's the question of why Whole Foods cares. Isn't "America's Healthiest Grocery Store" good enough? Well, it would be if Whole Foods was not attempting -- with limited success, analysts noted -- to expand internationally. 

As the blog Above the Law notes, though, all may not be lost. Papa John's initially failed to trademark its slogan "Better Ingredients, Better Pizza" because it could not substantiate that its ingredients were really superior.

It ended up getting the trademark anyway because it demonstrated that by using the mark for years, it had successfully associated it with its brand. The blog's authors, outstanding legal scholars all, speculate Whole Foods may have the same experience if it sticks with its efforts long enough. And hires enough lawyers.


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