I received a very interesting letter from the makers of Kamut, a major component of the cereal I blogged about a few weeks back. I suggested (and still believe) that the Heritage O’s box uses the term KAMUT in generic fashion, leaving consumers with the clear impression that KAMUT is a term like “oats” and that there isn’t a different generic name for the variety. Kamut, the company, has now shared its views with me:
In 1977 the Quinn family began growing[] Khorasan, an ancient variety of grain, on their farm in Montana. Bob Quinn, the company founder and organic farmer, decided to sell the grain under the brand name “KAMUT” to protect the integrity of the variety in its original form. This word “Kamut” was taken from a hieroglyphic dictionary of the ancient Egyptian language.
Our goal is not to hide from people the true name of the variety, but to promote the grain under our branded program. On our website www.kamut.com and in most marketing information we clearly identify the common variety name as Khorasan. However, today, due to many contributing factors, the grain variety is grown almost exclusively under our branded program and known as Kamut® brand grain. We are continually making efforts to educate consumers about our program, but as you have pointed out, many misconceptions still occur.
Misconceptions, however, become reality when it comes to genericity. If consumers won’t accept two terms, then they have chosen one as the generic, just as occurred with “aspirin.” It’s perhaps unfortunate for the original producer that no one can remember “acetylsalicylic acid,” but genericness doctrine prefers communication over private property where the two collide. Moreover, courts weigh generic uses by the trademark claimant pretty heavily; I would think that Kamut would want to have a discussion with its licensee Heritage Os about this use.
Regardless, I congratulate Kamut on its conduct: a temperate and reasoned explanation, rather than the bluster engaged in by too many trademark owners who should know better.
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2 comments:
Dear Professor Tushnet,
Could you kindly comment on the lessons the inventor of the "cronut" might take from the Kamut flap?
It seems the PTO has given the green light for Dominique Ansel to claim CRONUT as a mark, despite its genericity, not to mention its obvious descriptiveness(unholy union of croissant and donut).
Many thanks in advance for your feedback.
I tend to think that the term is generic (the alternatives to describe what it is are all awkward, which is a signal of genericity). But Chris Sprigman suggests it's descriptive; he's more generous than I'd be.
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