# Trademark question - "Taco Tuesday" **URL:** \ **Category:** Factual Questions\ **Created:** [September 5, 2018, 3:18am UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778 "2018-09-05T03:18:40Z")\ **Posts on this page:** 14\ **Page:** 3
**Author:** ![CookingWithGas](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cookingwithgas/32/485_2.png) [@CookingWithGas](https://boards.straightdope.com/u/CookingWithGas)\ **Post date:** [September 6, 2018, 1:34pm UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/41 "2018-09-06T13:34:19Z")
> [@Acsenray](#): > > The bit about the TM symbol is meaningless. The TM symbol as well as the Circle R symbol, is only significant if it is used by the trademark owner. It has no legal significance if used by someone else. So demanding that other people mark the trademark that way has no legal significance. Thanks for pointing this out. It is a source of endless annoyance to me that folks in my industry (IT) feel it’s necessary to show the circle-R after every product name in every document they write even though they do not make or even sell that product. Some people get the idea that this requirement is imposed on everybody, not just the trademark owner. I think people just think it’s cool to use special symbols. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [September 6, 2018, 2:31pm UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/42 "2018-09-06T14:31:33Z")
> [@silenus](#): > > Does prior continuous usage have any effect? Because Baker’s has been using the phrase in advertising since 1976, and continues to to this day. TJ didn’t claim to use the phrase until 3 years after that. > [@Acsenray](#): > > If we are talking about a situation in which a trademark examiner is determining whether to issue a registration to Taco John, then he or she will look for evidence that Taco John’s use of the term would create a likelihood of confusion with a senior user’s enforceable trademark. > > So the question will be is Baker using the term as a trademark and would the two trademarks clash. > > The examiner will also look at Baker’s use to see if that is evidence that the term Taco Tuesday is understood as a generic term by the public for the services listed in Taco John’s application. > > If the examiner allows publication of the application then Baker can try to make those same arguments (likelihood of confusion and genericness) in an opposition proceeding. > > At this point, with registration already in hand, Baker has the option for seeking cancellation of the registration at the PTO or in court alleging likelihood of confusion or genericness. > > If Taco John sues Baker for infringement, Baker can counterclaim using the same arguments. > > In any of those proceedings, if Baker’s use doesn’t amount to a trademark use or the evidence doesn’t show that the term is generic, then Taco John will have an enforceable trademark. Just to be clear, yes, Baker can claim the right to continue to use a Taco Tuesday trademark based on prior continuous use in the face of Taco John’s registration. That doesn’t mean that anyone else would benefit from Baker’s prior use. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [September 6, 2018, 2:37pm UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/43 "2018-09-06T14:37:27Z")
Thank you. That’s what I thought, but it’s good to have that unsupported opinion supported. It’s not like this is likely to ever become an issue, since Taco John’s is strictly a Mid-West chain and Baker’s is confined to a specific area of Southern California. Confusion between the two is not going to happen. To be honest, the driving force behind the question was the fact that I was unimpressed with the food at Taco John’s and I eat at Baker’s regularly. The hometown team must be supported in all things! ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [September 6, 2018, 9:33pm UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/44 "2018-09-06T21:33:53Z")
To be honest, I would have thought that the trademark, if any, would be held by Ortega. My understanding of “taco Tuesday” has always been that, one day a week, families ought to forgo the usual boring American fare in favor of an “exotic” meal, a concept which would surely have been encouraged by the sellers of the key ingredients of said “exotic” cuisine. In other words, Taco Tuesday is the day when Mom makes tacos at home, instead of making something else at home. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [September 6, 2018, 10:11pm UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/45 "2018-09-06T22:11:14Z")
> [@Chronos](#): > > To be honest, I would have thought that the trademark, if any, would be held by Ortega. My understanding of “taco Tuesday” has always been that, one day a week, families ought to forgo the usual boring American fare in favor of an “exotic” meal, a concept which would surely have been encouraged by the sellers of the key ingredients of said “exotic” cuisine. In other words, Taco Tuesday is the day when Mom makes tacos at home, instead of making something else at home. Remember, a trademark belongs to someone who uses a distinctive phrase or sign in commerce as an indicator of the source or origin of goods or services. If Ortega didn’t do that then it doesn’t hold a trademark. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [September 1, 2019, 9:36pm UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/46 "2019-09-01T21:36:42Z")
[Taco Tuesday](https://bleacherreport.com/articles/2851790-lebron-james-files-to-trademark-taco-tuesday-after-viral-social-media-posts?utm_source=cnn.com&utm_campaign=editorial&utm_medium=referral) is back in the news. This time it’s a trademark filing by LeBron James, of all people. ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [September 1, 2019, 9:48pm UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/47 "2019-09-01T21:48:30Z")
Too bad the article doesn’t point out that having a Taco Tuesday Broadcast is not likely to infringe TJ’s Taco Tuesday food services. ---
**Author:** ![carrps](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carrps/32/2957_2.png) [@carrps](https://boards.straightdope.com/u/carrps)\ **Post date:** [September 2, 2019, 12:27am UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/48 "2019-09-02T00:27:25Z")
> [@wolfman](#): > > You could go with Thaco Thursday, and double up on Mexican food enthusiasts with speech issues, and 80’s/90’s D&D fans at once. How about Tacos Today instead of Taco Tuesday??? ---
**Author:** ![psychonaut](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/psychonaut/32/4655_2.png) [@psychonaut](https://boards.straightdope.com/u/psychonaut)\ **Post date:** [September 2, 2019, 7:30am UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/49 "2019-09-02T07:30:46Z")
> [@CookingWithGas](#): > > Thanks for pointing this out. It is a source of endless annoyance to me that folks in my industry (IT) feel it’s necessary to show the circle-R after every product name in every document they write even though they do not make or even sell that product. Some people get the idea that this requirement is imposed on everybody, not just the trademark owner. I think people just think it’s cool to use special symbols. I rather think that this is a case of publishers using an abundance of caution to insulate themselves from claims that they are misrepresenting their product as having some official connection with the trademark holder (i.e., against [passing off](https://en.wikipedia.org/wiki/Passing_off) or similar). For example, if I publish a book called “Learn Sicromoft Bimbos in 21 Days”, it is conceivable that the Sicromoft Corporation might claim that my book misleads consumers into thinking that it is an official manual of theirs. And while I might successfully counterargue in court that I am using their trademark purely descriptively, knowing the reputed litigiousness of Sicromoft and the expense of defending oneself against legal claims, however frivolous, I try to avoid this situation from arising in the first place. One of the ways I do this is by placing an explicit statement in the front matter of my book acknowledging that Sicromoft Bimbos is a registered trademark of a third party, Sicromoft Corporation. Alternatively, maybe Sicromoft Corporation is aware that I am writing this book and offers to help out by providing me with a free copy of Sicromoft Bimbos, plus associated technical documentation, in exchange for making explicit reference to their trademarks in the front matter. ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [September 2, 2019, 12:33pm UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/50 "2019-09-02T12:33:41Z")
And some people still don’t get it. Way back when, If you ever used UNIX in a document without the circle-R you’d get a threatening letter from AT&T telling you that a: you had to use it and b: you had to include a footnote saying that UNIX was a trademark of AT&T, etc. This really ticked people off. Luckily, the trademark is now owned by The Open Group which has a better informed attitude about such [things](http://www.unix.org/trademark.html). Not. ☹ Namely they _still_ insist on the circle-R and the first reference footnote. These letters ticked off so many people that people started writing UN\*X. Which the enlightened folks at The Open Group explicitly list as a no-no for some reason. Taco T\*esday is coming. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [September 2, 2019, 1:01pm UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/51 "2019-09-02T13:01:37Z")
> [@psychonaut](#): > > I rather think that this is a case of publishers using an abundance of caution to insulate themselves from claims that they are misrepresenting their product as having some official connection with the trademark holder (i.e., against [passing off](https://en.wikipedia.org/wiki/Passing_off) or similar). If this is why they’re doing it, then they’re getting bad advice. Using a symbol doesn’t protect you from any legal claim under trademark law. Al it does is give notice that there’s a trademark claim on the indicator. The trademark owner could still go after you for falsely implying an affiliation. > [@](#): > > in exchange for making explicit reference to their trademarks in the front matter. Yes it’s common for licensing contracts to require it. But that’s because it’s the trademark owner who is essentially doing the speaking. ---
**Author:** ![psychonaut](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/psychonaut/32/4655_2.png) [@psychonaut](https://boards.straightdope.com/u/psychonaut)\ **Post date:** [September 2, 2019, 2:52pm UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/52 "2019-09-02T14:52:07Z")
> [@Acsenray](#): > > If this is why they’re doing it, then they’re getting bad advice. Using a symbol doesn’t protect you from any legal claim under trademark law. Al it does is give notice that there’s a trademark claim on the indicator. The trademark owner could still go after you for falsely implying an affiliation. I know all that. I was saying that giving such notice might be interpreted as an act of good faith by a barratrous trademark owner who might otherwise go after such innocent uses. ---
**Author:** ![EdelweissPirate](https://avatars.discourse-cdn.com/v4/letter/e/8491ac/32.png) [@EdelweissPirate](https://boards.straightdope.com/u/EdelweissPirate)\ **Post date:** [September 2, 2019, 5:25pm UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/53 "2019-09-02T17:25:14Z")
> [@psychonaut](#): > > I rather think that this is a case of publishers using an abundance of caution to insulate themselves from claims that they are misrepresenting their product as having some official connection with the trademark holder (i.e., against [passing off](https://en.wikipedia.org/wiki/Passing_off) or similar). I think Cooking With Gas was referring to more casual communications than you’re imagining. I’ve seen this occasionally in emails and new-employee training materials. If I understand CWG properly, publishers are never involved. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [September 2, 2019, 5:51pm UTC](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778/54 "2019-09-02T17:51:39Z")
> [@psychonaut](#): > > I know all that. I was saying that giving such notice might be interpreted as an act of good faith by a barratrous trademark owner who might otherwise go after such innocent uses. I think it’s unlikely to appease any trademark owner who objects to the use, whether or not the objection is supported by trademark law. [Previous page](https://boards.straightdope.com/t/trademark-question-taco-tuesday/820778.md?page=2)