Last year, in the spirit of Thanksgiving, we told you about Horace W. Longacre’s unsuccessful attempt to register BAKED TAM as a trademark for its “turkey ham” product in the early 1980s. This year we bring you a related tale, involving another trademark loss for Longacre’s turkey ham product, just a few years earlier. The deadpan introduction to Judge Alfred Luongo’s 1976 opinion for the Eastern District of Pennsylvania sets the stage admirably:
Those words identify the sound made by a male turkey. That fact and the desire of the contesting parties to profit from it furnish the stuff of this action for trademark infringement.
Louis Rich, Inc. v. Horace W. Longacre, Inc., 423 F. Supp. 1327 (E.D. Penn. 1976).
The plaintiff in the case was Louis Rich, an Iowa producer of “processed turkey meat products,” which is still in business today as a division of Oscar Meyer. In 1976 Louis Rich expanded from the industrial market into the retail market, and in conjunction with that launch, it undertook an expansive national advertising campaign. “The television commercials featured, in the closings, a picture of the product with plaintiff’s name superimposed on the screen immediately followed by the unexpected utterance of the term ‘gobble-gobble’ by the on-camera actor.” Id. Louis Rich also used the tagline “gobble-gobble” in print and radio advertisements, on point-of-sale displays, and on promotional lapel buttons, and obtained a federal registration of the mark in connection with “processed turkey in the shape of a frankfurter.”
Meanwhile, Longacre was developing a new advertisement for its turkey ham, apparently intending to convince customers that appetizing “ham” could be produced from turkey. The commercial featured a young boy who is asked, “What do you say to a ham that is made out of turkey?” and replies with uncertainty, “Gobble-gobble?” After tasting a turkey ham sandwich, the boy has a more favorable impression, and at the end of the spot, he again says “gobble-gobble,” this time with a positive tone. After producing its commercial, Longacre became aware of Louis Rich’s recently launched “gobble-gobble” advertisements, but Longacre decided to proceed with its media campaign despite the infringement risks.
Unsurprisingly, Louis Rich was not pleased with Longacre’s commercial, and after unsuccessful cease-and-desist demands, it sued for infringement and moved for a preliminary injunction.
Is Gobble-Gobble Descriptive of Turkey?
One of Longacre’s primary arguments in defense was that Louis Rich could not claim trademark rights in the term “gobble-gobble” in connection with turkey meat products, because the sound made by a turkey is descriptive as applied to those goods. Judge Luongo, however, disagreed:
The term “gobble-gobble” is suggestive of turkey. It describes the sound made by a turkey, but it does not describe turkey meat products. The term could suggest any variety of products having some connection with a turkey, for example, a turkey itself, or a stuffed or rubber toy in the shape of a turkey, or a device used to imitate the sound of a turkey, or some product made from turkey meat. . . . Because “gobble-gobble” does not specifically identify the goods here at issue, or some ingredient, quality, or characteristic of them, the term is not so descriptive as to be not entitled to trademark status.
Id. at 1337-38.
Judge Luongo also rejected Longacre’s argument that its own use of the term “gobble-gobble” was fair because it was not used in a trademark sense. The Court found that Longacre’s advertisements served to associate the phrase “gobble-gobble” with the manufacturer and its product. By contrast, the Court pointed to an example of fair use of the phrase “gobble-gobble” in a contemporaneous advertisement for Perdue chicken that contained the statement “. . . you can just sit back and watch everybody gobble-gobble it up.”
Having found Longacre’s defenses unavailing, the Court granted Louis Rich’s motion for a preliminary injunction.
Who Owns Gobble-Gobble Today?
After the Gobble-Gobble advertising campaign presumably ran its course, Louis Rich surrendered its registration for cancellation in 1983. There are currently a few live U.S. trademark records incorporating the term “gobble” in connection with turkey products:
- Ted Kuck of Kuck Farms, “Home of the Turkey Rib,” has a registration for GOBBLE’M RIBBZ in connection with “meat products, namely, turkey.”
- Adam Gold of Gobble Restaurant in Woodinville, Washington has a pending application for GOBBLE in connection with restaurant services, including “restaurant services featuring Turkey-based dishes, as well as non Turkey-based accompanying side dishes.” This application has been suspended pending disposition of a prior-filed intent-to-use application for GOBBLE GOBBLE in connection with “restaurant services,” simply stated.
- Cluck, Inc. has recently filed an application to register GOBBLE ‘N MOO in connection with a combination of ground beef and ground turkey in various forms.
So far, the Patent and Trademark Office has not raised descriptiveness objections to any of these applications, implying that it agrees with Judge Luongo’s conclusion that the sound made by a turkey is suggestive – but not descriptive – of turkey-based products. Food for thought as you gobble-gobble your way through Thanksgiving dinner this year.