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Saturday, November 04, 2006

The Gourmet Mustard People: Too Polite to Litigate?

Once again it has come to my attention that most people are beginners when it comes to trademark issues, and will happily assimilate their competitors' "trademark outrage" out of fear, ignorance, or some kind of unfulfilled legal fetish fueled by watching bad TV. Specifically, I hear about all the fear in the paid search business that remains about using trademarked words as trigger keywords, and using the trademarks in ads. Clearly, there are legal tests of trademark violations, but a large part of the day-to-day use of brand names counts as fair use. Yet threatening phone calls and knee-jerk acquiescences abound, still. I still advise many clients to stand down when threatened, and further, advise that I am not legal counsel, so the point I'm making here is of a more general nature -- let's stop with the crazy stereotypes around what qualifies for legal action on trademark violation.

Maille, as mustard making goes, is a relative teenager at about 259 years. Actually, it seems they began with vinegar before moving onto mustard, and their Dijon style mustard is now considered venerable enough to make their competitors seem like relative rookies. That helps with profit margins, no doubt. By American standards, their brand seems to have enough prestige to have become "aspirational." Having been snapped up by Danone in 1980, Maille is now owned by The Unilever Group. That gets the product on a few shelves.

French's (ha, French's, an American brand) aspires to be Maille, at least in the Dijon category (which is a designation that isn't controlled or trademarked in North America, btw). That must be why they have the satirical TV commercial showing a fellow in a Maille logo polo shirt (does he work for Maille? we'll never tell) admitting that French's Dijon tastes better. Then he says "you'll black out my face and disguise my voice, right?" French's mustard is over 100 years old. It is owned by Reckitt Benckiser, a huge conglomerate that also makes Lysol and Easy-Off.

So what should Maille's reaction be? To be flattered, of course. There's not much else they'll be doing about it, given that this is a comparative taste claim of sorts. Again, I'm not a lawyer, but you can be sure the French's people didn't make the expensive spot without checking on this.

So if common sense is allowing us to avert the Mustard Wars of 2006, maybe your vertical will survive a little friendly comparison and juxtaposition as well, in the ordinary course of competitors wooing new customers.

Posted by Andrew Goodman




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