Pepsi and Oatmeal: Choices of Generations
Image attributed to "Jason Dunn" at http://photos.jasondunn.com
When thinking about product advertisements, what does the slogan “the choice of a new generation” bring to mind? Because of a huge ad campaign from PepsiCo, which started in the mid-1980s and lasted through 1991, and featured commercials starring celebrities like Michael Jackson and Lionel Ritchie, many adults today apparently think of Pepsi. Having been born in 1987, and not really paying attention to much around me until after 1991, I must have missed PepsiCo’s ad campaign making that association for me. I’m not sure why, but “the choice of a new generation” makes me think of Bagel Bites, at least when we’re talking about food.
In 2009, eighteen years after PepsiCo stopped using the ad slogan, MOM Brands applied to trademark the slogan for themselves, and now there’s an online ad with a man named Josh Anderson enthusiastically singing about how MOM Brands’ Better Oats is the now the choice of a new generation. Especially when you consider that MOM Brands’ CEO is a former marketer for PepsiCo/Frito Lay, it looks like MOM Brands is only using the slogan to benefit from PepsiCo having built up its goodwill. Curiously, MOM Brands might benefit from seizing PepsiCo’s ad slogan, but it almost certainly wouldn’t be a case of trademark infringement.
Trademark protection allows people and businesses to build up and protect their brands, but there’s the idea that you can lose the protection if you stop using the trademark. 15 U.S.C. § 1127 says that nonuse of a trademark for three years is a prima facie argument for abandonment of that trademark, but the underlying, determinative issue is whether the trademark retains a significance of origin. Even after three years of non-use, a trademark holder can rebut a claim of abandonment if they can prove their intent to keep the trademark alive and resume using it in business. In this way, a trademark can still be protected by its “residual goodwill.”
Chances are that PepsiCo would be out of luck if it wanted to challenge MOM Brands’ use of the ad slogan. Yes, MOM Brands is profiting off PepsiCo’s investment in the slogan, but a court would probably consider PepsiCo to have abandoned it and its trademark protection. PepsiCo hasn’t used the slogan since 1991, which was over twenty years ago. The slogan might retain its significance of origin for many adults, but for many more I suspect they either never saw the commercials or can’t remember them anymore. Also, PepsiCo’s not contesting MOM Brands 2009 trademark of the slogan can be construed as PepsiCo’s lack of intent to resume using it itself. If PepsiCo could convince a court that the slogan’s significance of origin is strong enough to have survived twenty years of nonuse, PepsiCo would still have to show that it intended to resurrect the trademark and use it again. It’s certainly not impossible for a company to make a retro-themed ad campaign, but it’s very unlikely that PepsiCo would be able to objectively show it had that intent.
MOM Brands’ use of PepsiCo’s old trademarked slogan is interesting because it allows MOM Brands to benefit from the goodwill of another’s brand, but it doesn’t impermissibly harm PepsiCo. It does take away PepsiCo’s exclusive use of the slogan and opportunity to revive it for a future ad campaign, but PepsiCo’s trademark protection never went that far in the first place.
It’s easy to fall into the trap of thinking that intellectual property protections are meant to last forever and that those who create intellectual properties will always be entitled to their profits. The monopolies granted to intellectual property rights holders might last a long time, but they’re not meant to privatize ideas. Instead, they provide temporary or conditional protection to incentivize creation. Intellectual property protections are a means to an end, and not the end itself. Trademark law incentivizes people to invest in and develop trademarks for businesses, but when that trademark isn’t being used anymore, it goes back into the public for others to use it instead. It’s about the development of business in general, and not anybody’s specifically.
