Burger King: King of Fries. Is that some variety of anagram?
In case you hadn’t heard, Burger King is attempting to assert its authority as the King of fast food. Not that the fast food wars are anything new, but it seems that Burger King’s latest public relations campaign is frying a lot of people’s brains and testing the bounds of the most seasoned fast food ad campaigns.
This week, Burger King made a series of announcements across Twitter and other social media outlets that it was temporarily re-branding itself as “Fries King”. This prompted some business journalists to lament the fact that Burger King’s ad stunt is really just a gimmicky ad campaign that is only contributing to confusion on the part of consumers. No, not the same type of confusion that we trademark lawyers speak of whenever a trademark owner finds that a third-party is using a logo that is similar in appearance to the trademark owners’ logo. Burger King’s temporary re-branding couldn’t be confusing in that sense because consumers are keenly aware that “Burger King” and “Fries King” probably one and the same. After all, the Fries King logo uses the same coloring and arrangement of elements as the Burger King logo not to mention that the main point of contact between consumers and the Fries King logo is at a physical storefront for Burger King, where consumers undoubtedly recognize other symbols associated with Burger King.
This week, Burger King made a series of announcements across Twitter and other social media outlets that it was temporarily re-branding itself as “Fries King”. This prompted some business journalists to lament the fact that Burger King’s ad stunt is really just a gimmicky ad campaign that is only contributing to confusion on the part of consumers. No, not the same type of confusion that we trademark lawyers speak of whenever a trademark owner finds that a third-party is using a logo that is similar in appearance to the trademark owners’ logo. Burger King’s temporary re-branding couldn’t be confusing in that sense because consumers are keenly aware that “Burger King” and “Fries King” probably one and the same. After all, the Fries King logo uses the same coloring and arrangement of elements as the Burger King logo not to mention that the main point of contact between consumers and the Fries King logo is at a physical storefront for Burger King, where consumers undoubtedly recognize other symbols associated with Burger King.
Most complaints I have seen seem to pertain to the fact that Burger King is somehow getting away from its mission, its core specialty. And that, of course, is serving burgers!Could Burger King be driving at some other, more long-term goal of making its “King” mark into a family mark, akin to what McDonalds has done with its Chicken McNuggets and McCafe products?
A trademark becomes a family mark if multiple marks share a prefix, suffix, word, syllable, or other feature. A commonly-shared component of multiple marks can become a family trademark if the trademark owner advertises the family in such a way that the public recognizes the shared element as identifying products or services originating from the trademark family owner. Gaining protection for a single element of a mark isn’t so easy as simply coming up with multiple marks with common elements. Courts have held that the existence of a family mark is a question of fact and is based on the uniqueness of the common elements of the different marks and other factors including how widely the family mark element was used in advertising, promotion, and its inclusion in a number of registered and unregistered marks owned by the trademark owner.
In the case where the “Mc” prefix was found to be a prefix, a competing food restaurant aimed to brand itself “McBagels” and serve (surprise surprise) bagels and other breakfast items. The court found that McDonald’s was able to develop tons of recognition for its “Mc” mark by using it extensively on pizza (McPizza), chicken, and its famous breakfast sandwich, “Egg McMuffin” (side note: even my spell check recognizes that “McMuffin” and McNugget” are properly spelled words!). Moreover, the media had seized on this strategy by McDonalds and referenced events held in connection with McDonalds or anything even referencing McDonalds with the same “Mc” prefix. For example, the court referenced a nationally-syndicated political cartoon depicting President Ronald Reagan in front of a “McRonald’s” sign in connection with golden arches.
In the case where the “Mc” prefix was found to be a prefix, a competing food restaurant aimed to brand itself “McBagels” and serve (surprise surprise) bagels and other breakfast items. The court found that McDonald’s was able to develop tons of recognition for its “Mc” mark by using it extensively on pizza (McPizza), chicken, and its famous breakfast sandwich, “Egg McMuffin” (side note: even my spell check recognizes that “McMuffin” and McNugget” are properly spelled words!). Moreover, the media had seized on this strategy by McDonalds and referenced events held in connection with McDonalds or anything even referencing McDonalds with the same “Mc” prefix. For example, the court referenced a nationally-syndicated political cartoon depicting President Ronald Reagan in front of a “McRonald’s” sign in connection with golden arches.
Having a particular component designated as a family mark is huge because it allows the owner of the family mark to prevent any competitor from using a similar element in their name, even if the trademark owner does not sell the same products as the competitor and does not use the same exact trademark as the competitor is using. This is why McDonald’s was able to prevent the McBagels trademark from being used. One concern with recognizing that a certain component of a trademark actually qualifies for protection is that it grants trademark owners a virtual monopoly on that particular component, something some trademark attorney’s deem a right in gross. As a general policy matter, it is not cool to grant a particular trademark owner a right in gross (at least in the circumstance of a family mark) because it gives that trademark owner rights to any and all trademarks that include a particular element, even if the trademark owner hasn’t developed goodwill for a particular reiteration of a family trademark. On the other hand, the attempt by a trademark owner to acquire a family trademark is wholly consistent with a trademark owner’s interest in maximizing brand protection because a family mark maximizes brand equity and contributes to the overall mark becoming famous.
Tomato king. To make the ketchup that goes with the fries from Fries King!
So could Burger King succeed in obtaining the same kind of protection for the “King” component? Perhaps. It would first have to establish that the “KING” suffix is used across a number of different products, but used in such a way that a consumer could draw associations between the different products offered at Burger King. One of the ways that Burger King could accomplish this is through the branding of different food items like fries with “King” or milkshakes “Shake King”. You get the idea. There is one problem with this approach: there are already many other “kings” in the fast food industry. A simple search of the U.S. trademarks database uncovered “Smoothy King”, “Donut King”, “Wing King”, and “Sandwich King”. This isn’t necessarily a deal breaker for Burger King. After all, with the amount of pull Burger King and the BK brand have overall, it isn’t unreasonable to think that the “King” component, when used properly by Burger King, could capture the coveted status of family mark.
But it won’t be easy. Burger King, like McDonald’s and Toys-R-Us, will have to use the “KING” suffix consistently across multiple products. Consistent means for many years and across many different marketing mediums. And because of the way family marks works, getting family mark status for “King” would make Burger King the “King” of “King”, so to speak, at least for fast food in America. This would be good for Burger King because it could claim a lot more goodwill by virtue of its “King” suffix being potentially attributable to more items, even without investing serious money to develop these alternative outlets.
But it won’t be easy. Burger King, like McDonald’s and Toys-R-Us, will have to use the “KING” suffix consistently across multiple products. Consistent means for many years and across many different marketing mediums. And because of the way family marks works, getting family mark status for “King” would make Burger King the “King” of “King”, so to speak, at least for fast food in America. This would be good for Burger King because it could claim a lot more goodwill by virtue of its “King” suffix being potentially attributable to more items, even without investing serious money to develop these alternative outlets.
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