A deli in Philadelphia has filed suit against the U.S. Patent and Trademark Office over an apostrophe, claiming that its “Philadelphia’s Cheesesteak” is “so superlative,” so “gloriously gluttonous,” it could not possibly be confused with the generic “Philadelphia Cheesesteak.”
Campo’s Deli sued the U.S. Patent and Trademark Officer Director David Kappos in Philadelphia Federal Court. The deli applied for a trademark in 2009, was rejected in 2010, appealed, and were rejected again after an oral hearing in March of this year. The family says that they’ve been using the trademark since at least January 1, 2009 at four retail outlets, including the stadiums for the Phillies, the Flyers and the Sixers.
The Campos insist that their trademark request is valid given that it is specific to an exact variety and quality of sandwich. They say that their trademark “is not, in any sense, an attempt to improperly control the phrase ‘Philadelphia Cheesesteak.’” They acknowledge that the phrase without the apostrophe is a generic term used only to describe a type of sandwich.
The complaint went on to say that, “The difference in the two phrases, of course, is an (‘s), which demarcates a particular kind of gloriously gluttonous sandwich provided only by the plaintiff – not just a Philadelphia Cheesesteak, but ‘Philadelphia’s Cheesesteak.”
The family says that their attempt at a trademark is descriptive of a unique and “tremendously delicious” product and is not meant only as a geographic description of the product. They say that the mark will be used to allow the company to franchise; something that will be needed to demonstrate to customers that the brand is the very best example of what is otherwise a common, simple sandwich. The complaint was certainly creative, at one point saying that their product has such a “propensity for myocardial infarction that it could only be called ‘Philadelphia’s Cheesesteak.’”
The Campos do acknowledge that the Patent and Trademark Office has a point about similar trademarks having been issued in recent years. Three nearly identical trademarks have been issued which the Office has deemed too similar to the Campos’ proposed mark, these include: Philadelphia’s Cheesecake Co., Philadelphia Cheesesteak Co. and The Original Philadelphia Cheesesteak Co.
Though these may seem almost indistinguishable from the Campos’s mark, the family insists that there could be no confusion between the brands. This is because they claim the name is not about identifying the company, but instead identifying a special variety of an otherwise generic sandwich. They say that there’s no likelihood of confusion between the marks given that the other three companies produce wholesale sliced meat. “They have different products, different consumers, and entirely different avenues of commerce.” Whether that argument holds water remains to be seen, the case is currently awaiting an initial hearing.
Source: “Deli sues feds for refusing to trademark its ‘Philadelphia’s Cheesesteak’,” by Michael Hinkelman, published at Philly.com.
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