In Charles Dickens’ A Christmas Carol, Ebenezer Scrooge’s transformation from miser to profligate is marked by his purchase of a turkey for the Cratchit family. Turkey used to be a luxury food, in most households suitable only for special occasions. In the 1930’s, Americans ate an average of only 1.7 pounds of turkey each year (compared to about 20 pounds today). After World War II, turkey farming became industrialized and its output cheaper. By the 1970’s, a cholesterol-conscious country began replacing traditional red meats with turkey burgers, turkey dogs and “turkey ham,” a product made from processed turkey thigh meat.
In the midst of this turkey boom was Horace W. Longacre, a Mennonite hosiery knitter from rural Pennsylvania, who had taken up turkey farming in 1944 to qualify for a draft deferment. In 1977, in order to emphasize his product’s status as a viable substitute for red meat, Longacre started marketing turkey ham under the name “Baked Tam.” The Department of Agriculture (DOA) granted approval for Longacre’s use of the term, on condition that his labels also include the words: “A Cured and Smoked Dark Turkey Meat Product.” Longacre began selling Baked Tam to the deli counters of supermarkets later that year, where it was often placed alongside the more traditional (and more expensive) baked ham. Longacre also sought to register “Baked Tam” as a trademark.
The pork industry regarded this kind of marketing as an existential threat. Upon learning of the Longacre trademark application, the American Meat Institute (AMI) teamed up with Hormel (the makers of “Spam”) to oppose registration under 15 U.S.C. § 1052, which disallows marks that are “merely descriptive or deceptively misdescriptive” unless they have acquired secondary meaning, which “Baked Tam” had not.
In 1981, the Trademark Trial and Appeal Board agreed with the opposers, and disallowed registration of the mark. The TTAB analysis started with the term “baked ham,” from which the term “Baked Tam” admittedly derived. “Baked ham” would be “merely descriptive” when affixed to a ham, because it perfectly describes that product. But when affixed to say, beef or turkey, “baked ham” would be “deceptively misdescriptive,” because it would purport to describe the product as having certain attributes it did not in fact have, in this case ham.
Turning to Longacre’s “Baked Tam,” the TTAB acknowledged that the mark was not identical to “baked ham,” but held that same rules applied anyway for two reasons. First, the two terms were visually similar enough such that consumers might assume the one-letter difference was the result of a spelling error rather than a separate product. Second, and more importantly, the two terms were phonetically indistinguishable, especially in the context of a crowded deli counter where “an order to the counterman for one product could produce the other.” If you close your eyes and imagine Abbott and Costello at a butcher shop, it’s hard not to see, or at least hear, the TTAB’s point:
“I’d like some baked ham, Mr. Butcher.”
“Did you say Baked Tam or baked ham?”
“That’s right, baked ham.”
“Ok, Baked Tam coming right up.”
But the pork industry didn’t win them all. At the same time the TTAB was putting the kaibosh on “Baked Tam,” the AMI and the National Pork Producers Council were filing suit in the Eastern District of Virginia against the DOA, arguing that the Secretary of Agriculture had acted in an arbitrary and capricious manner when he promulgated a 1979 regulation formally allowing the use of the term “turkey ham” by the poultry industry. Judge Richard B. Kellam, citing Alice in Wonderland for the proposition that pigs don’t have wings, enjoined further “turkey ham” labeling until the DOA had investigated whether it was confusing to consumers. On appeal, however, the Fourth Circuit reinstated the regulation on the grounds that the DOA had already addressed potential consumer confusion by requiring that the label also include the extra explanatory words: “Cured Turkey Thigh Meat.” That rule is still on the books – check your super market.
Ironically, only a few years later, the pork industry stopped trying to beat turkey and instead joined it. In 1988, the National Pork Producers Council registered “The Other White Meat” as a trademark, apparently without opposition from the poultry industry.