This post is part of the Reporter's Notebook blog.
Chipotle Mexican Grill getting into the burger business is one thing. But Chipotle owning the phrase “better burger” is another.
Isn’t that like McDonald’s attempting to trademark the term “fast food,” or Romano’s Macaroni Grill claiming rights to “red sauce Italian?”
Maybe not exactly. But the phrase “better burger” is now widely used to describe a segment of burger concepts that serve made-to-order hamburgers with premium patties, fresh and exotic toppings, and something a little more interesting than a squishy white-bread bun.
It’s a term that was born of the better-burger boom of the past two decades, with the rise of brands like Five Guys Burgers and Fries, Smashburger, Culver’s and, more recently, Shake Shack and The Habit Burger Grill.
And even though the term “better burger” means something specific in the industry, Chipotle could be allowed to trademark it.
Still, it could be a challenge, said trademark attorney Sheila Fox Morrison, a partner at law firm Davis Wright Tremaine LLP in Portland, Ore.
Chipotle applied for the trademark on March 11, and it generally takes about three or four months for the U.S. Patent and Trademark Office to review the application to decide whether it’s even registerable.
They’ll look to see if it conflicts with another trademark or something similar, and they’ll decide whether it can function as an inherently distinctive term.
The application could be refused on the basis that the term is merely descriptive and that it has no identity to a single source.
And then there’s the problem of Luby’s Fuddruckers Restaurants LLC, which has registered the term “Better buns. Better Burger.”
Luby’s Fuddruckers in 2012 applied to trademark the phrase “Better buns. Better burger,” with a disclaimer that it wasn’t seeking exclusive rights to “better burger.” But it was refused because the term was found to be merely descriptive.
So they tried again, putting the application in the Supplemental Register, a typical next step, arguing that even though the Trademark office wouldn’t grant exclusive use, they wanted to own the term with the goal of earning “acquired distinctiveness” over time. Their application has since been approved on the Principal Register, and now they can claim to have exclusive rights.
Several other restaurant chains and related industries hold similar marks.
Sutter Home Family Vineyards holds the trademark for “Build a Better Burger,” which is the name of an annual recipe contest held since 1990.
Firebird Restaurant Group has trademarked the term “the original better burger” with a disclaimer simply for the word “burger.”
The list goes on.
Of course, with enough branding muscle, Chipotle could potentially convince consumers to identify the phrase with its potential new burger brand — whatever it may be named. That’s what trademark attorneys call “secondary meaning.”
Chipotle has done that once already.
The word “chipotle,” for example, refers to a type of chile pepper or flavor profile. But most American consumers would now immediately link the word to the restaurant chain.
In fact, Chipotle in 2012 sued Jack in the Box for using the word “chipotle” in marketing a Chipotle Chicken Club Combo limited-time offer, in a trademark case that was later settled
“If you can capture the mind of consumers and they come to recognize the term, it can be as strong a brand as any, and you end up having that exclusive right” to use it, Morrison said.
Some in the restaurant industry could object to the Denver-based chain’s attempt to own the “better burger” term, saying it should remain common language to identify the segment.
Challengers could potentially file a letter of protest with the Trademark office, Morrison said. “It’s not contentious,” she noted. “It’s a flag to say, ‘Hey, did you know this term is commonly used?’”
If that doesn’t work, then challengers could oppose the trademark registration.
Morrison, for example, noted that she and other trademark attorneys working with craft beer concepts have objected to another lawyer’s attempt to trademark the term “craft beer attorney.”
It remains to be seen what will happen, both with the phrase “better burger” and Chipotle’s move into the burger space.
Key players in the burger world say they’re not concerned.
“We welcome the attention on the fast-casual burger category,” said Josh Kern, Smashburger’s chief marketing officer. “At Smashburger, we focus on our brand every day and we do not concern ourselves with every new restaurant concept that opens, and that is the case here. Smashburger is proud to be serving America’s favorite food item, one burger at a time.”