More "Fowl" Play: Rival's "Original Recipe" Ads Ruffle KFC's Feathers All the Way to Court
KFC is suing rival chicken chain Church's in a Texas federal court over a series of new ads that proclaim the company is bringing back its own "original recipe."
KFC says "Original Recipe" is their registered trademark and therefore off limits, even though Colonel Sanders' signature blend of herbs and spices remains safe.
But is KFC squawking over an actual problem, or is "original recipe" too vague and broad a sentiment to stand as a valid trademark?
Let's take a closer look and see where the arguments line up in the pecking order between these two chicken giants, and how this cockfight is likely to shake out in court!
There Can Be Only One - Right?
Since 1984, Kentucky Fried Chicken has used "Original Recipe" as a key part of its branding. The goal, of course, is to make sure when people think of that phrase, they think of KFC by default. In many respects, the decades-long campaign has succeeded spectacularly, as one would expect from a brand that's been hammering at the same theme for forty years.
The problem is that although KFC has used the phrase for so long, it's hardly the only company out there with an "original recipe." Coke, Pepsi (who happens to have an ownership stake in KFC), Mrs. Fields, Sara Lee, and Snickers are all examples of brands that have become iconic through their founders' "original recipes." Some of these, such as the formula for Coca-Cola and KFC's much-touted proprietary blend of 11 herbs and spices, are trade secrets as jealously guarded as nuclear launch codes. (Never mind that a quick Google search for "KFC fried chicken recipe" turns up several hundred copycats, clones, and knockoff recipes. These recipes purport to dissect and reverse engineer every aspect of the Colonel's recipe from precise cooking temperature to the exact measurements of the herbs and spices used, so home cooks can try their hands at replicating the fast-food staple in their own kitchens.)
It is therefore unsurprising, even logical, that Church's Chicken would assert that it has an original recipe from which it started too--and if the chain's new run of ads is accurate, they're going back to basics, as it were. However, KFC's marketing and branding hinge so heavily on the "Original Recipe" concept that it has become one of the company's registered trademarks--and arguably one of its most recognized. This means KFC can't afford to let the challenge Church's poses to their own recipe, intentional or not, pass unchallenged.
For its own part, Church's ignored a cease-and-desist notice of trademark infringement sent by KFC shortly after the new batch of marketing materials went public. There could be a number of reasons for this, none of which I am privy to, but a logical starting point would be to consider just how sustainable "Original Recipe" is as a trademark.
And that's where Church's may just have the upper hand (wing?) in this situation.
Signs of a Good Trademark
Generic, broad, or common words, phrases, concepts, colors, sounds, fonts, and so on generally cannot be used as trademarks, although in some cases colors by themselves have been trademarked. A specific combination of these could be, such as UPS's signature brown color (Pullman brown, hex code #644117, if you happen to be curious) and the phrase "What can brown do for you?" rendered in contrasting bright yellow text.
Recently, I wrote about a challenge to a series of trademarks held jointly by DC Comics and Marvel concerning the word "superhero" and variants thereof. These trademarks were struck down by the USPTO's Trademark Trial and Appeal Board after standing, in some cases, since the 1960s, because they were too broad and didn't properly serve as a descriptive source of goods or services. Another foodie-relevant example would be the dustup over Taco John's' ownership of the phrase "Taco Tuesday," which was abandoned by the taco chain after Taco Bell stated its intent to pursue legal action to free the phrase for use in its own marketing.
A good trademark works as a brand identifier which clearly identifies a singular source of goods and services. Apple Computers is perhaps the Platonic ideal example of this concept. Apples and computers have little to do with each other beyond a tenuous conceptual link to "items found in a classroom" created by the founders of Apple, but that linkage has made Apple's branding all but unassailable in the marketplace. An apple farm simply calling itself "Apple Farm" or even "Apple" would not fare nearly as well, because while the farm may well grow and sell apples, the name doesn't convey sufficient information in itself to do the heavy lifting a trademark requires.
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Given these facts, I would be very surprised if Church's doesn't lean into the argument that "original recipe" falls under the same umbrella as "superhero:" Too broad, doesn't stand on its own as a brand identifier, ignores the point that nearly every major food brand has an original recipe of some sort, and so on. While KFC can assert longevity of message and association in the public eye between "original recipe" and KFC, that's a risky gambit, especially in light of the superheroes ruling and the Taco Tuesday mark abandonment.
A court might well rule that the original recipe mark is too broad to be valid, which could be devastating to KFC on a wider scale. The cash-strapped company's earnings are down, and it cannot afford to lose intellectual property at this time - especially such a potentially valuable trademark as "Original Recipe." But if the mark is invalid and vulnerable to challenge, then it leaves KFC nowhere to go if the courts find against the mark and/or in favor of Church's, which in this case would be one and the same.
The Bottom Line
KFC cannot NOT contest Church's use of "original recipe" and hope to retain the relevant trademark. More to the point, with its sales declining, KFC's future may well depend on convincing the courts that it should retain the rights and privileges trademark ownership confers. Since Church's has demonstrated no interest in backing down from the threat posed by its larger rival, KFC is therefore painted into a legal corner it has no choice but to fight from.
Church's has the stronger hand here, by far. As discussed, the mark is too broad to stand alone, and the recent wave of highly publicized trademark abandonment, overturns, and rejections puts KFC in a very vulnerable position legally. If Church's can weather this storm and the inevitable appeals, the company could well emerge on top of KFC and the fast-food chicken ecosystem as a whole once the dust settles. It's possible that public sentiment against trademark bullying might also help Church's win the day, as consumers vote with their wallets for the "little guy" in this case.
This case is going to be particularly interesting from the standpoint of what it could mean for how trademarks are vetted, evaluated, and utilized in the broader market moving forward. On its face, I feel it's pretty safe to figure Church's as the most likely winner - but the courts have surprised me before. We're just going to have to wait and see who comes out crowing...and who ends up clucking mad once the final gavel comes down!
ABOUT JOHN RIZVI, ESQ.
John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).
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