My kid noticed to that Kroger brand products often have the phrase “From our family to yours” printed on the box under the Kroger logo, but so also do Bush’s Best products. There’s a “TM” on the Bush’s Best can by the phrase, but none on the Kroger products. He (and I) thought that if the phrase is trademarked by Bush’s Best, then Kroger can’t use it.
I found a page that seems to indicate Kroger of Michigan had a trademark on this phrase that was abandoned in 2012.
And that’s the only page connecting Kroger with that phrase that I’ve been able to find. To be clear–I am almost certain the Kroger products in our pantry were produced long after 2012, and anyway, we’re not in Michigan.
So what is it that my son and I have misunderstood about trademark law?
On reflection, I am guessing the graphical arrangement of the phrase is what makes the difference here? I had thought that didn’t matter, but maybe I was wrong.
A search in the US Patent and Trademark Office’s TESS2 database shows that some variant of the phrase has been trademarked by a dozen companies, for various specific foods, insecticides, burial insurance, pharmacy services, and even vinyl windows.
The variant I see for Bush’s is the entire phrase “Since 1908 Bush’s Best from Our Family to Yours” arranged in an oval.
Trademark use doesn’t require registration with the USPTO. You simply need to use a trademark (as long as it satisfies certain requirements, like not being generic) in commerce. However, your mark is limited to the geographic area in which you actually sell your product. A second business decides to register a similar mark with the USPTO – the second business now has trademark protection (and the right to use the “tm” after the mark) nationwide, but not in the geographic area where your business does commerce (because you’ve established priority through use).
You can see how the above situation could lead to the result you described.
Of course, trademarks are only enforced if one party takes action. Companies may have reasons for not C&D letters, or they simply may not be aware of the infringement.