On September 26, Dunkin’ Donuts filed a trademark application for a revolutionary new brand slogan. The international donut shop and coffee retailer seeks to diversify its marketing materials with the groundbreaking new phrase “Best Coffee in America.”

Are you serious, Dunkin’?

Admittedly, the donut chain’s product is good (Friday morning saw me self-consciously walking into work with 24 ounces of the stuff in hand), their stores are convenient (the chain currently owns 7,000 stores in the US and stores in 32 foreign countries with plans to double its locations within 20 years), and their fanbase is faithful (Boston, Massachusetts, amiright?). These facts have apparently led the executives of Dunkin’ Donuts to develop a slogan that proclaims it the best in the land. [Author note: I would hate to be the underappreciated intern at Dunkin’ Donuts whose fabulously creative magnum opus of a marketing strategy was bypassed for this.] Looking forward: Will the United States Patent and Trademark Office (USPTO) grant Dunkin’ Donuts the right to exclusively use this slogan? Should it?

We’re not going to place bets on the potential for success of this application, but all my student loan money is on the USPTO rejecting it anyway.  At first glance, a statement like “Best Coffee in America” seems like false advertising, given the unquantifiable scale of quality that reflects deeply personal coffee preferences. However, the Trademark Trial and Appeal Board (TTAB) will probably reject this application as it amounts to nothing more than product “puffery,” or exaggerated promotion of a product’s quality relative to comparable items. In 1998, the TTAB rejected Boston Beer Company’s application for the slogan “Best Beer in America.” Boston Beer claimed that the phrase, while descriptive, had developed secondary meaning through significant promotion.

The TTAB disagreed, explaining that such laudatory phrases are used only to indicate the superiority of a set of goods over another comparable good. Since a laudatory phrase is only used for such a purpose and is commonly used by all competitive industries, it cannot function as an indicator of origin. Therefore, the phrase was unregistrable. This decision was affirmed by the Federal Circuit, which held that such laudatory statements are not generic but are likewise incapable of developing distinctiveness. The TTAB has consistently held this position ever since. While Dunkin’ Donuts coffee is generally very good (in this author’s humble opinion), its attempt at setting itself apart as the best in the country is not creative enough to change the Board’s mind.

An observer suggests that Dunkin’ Donuts’ competitors will likely challenge the application. Such a challenge would probably prove unnecessary in light of the TTAB’s attitude about these types of marks. Head back to the drawing board Dunkin’, and listen to your interns.

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