Artisan Puffery?

There once was a day when being an "artisan" meant something: "A person or company that makes a high-quality, distinctive product in small quantities, usually by hand using traditional methods: artisan foods." The key elements of an artisan's handiwork seem to be hand-crafted, distinctive products of high-quality that are produced in small numbers. Perhaps bread from the local bakery, craft beer from the corner brewpub, unique cheese from a small dairy farm, and for the less edible, one-of-a-kind jewelry items, custom furniture pieces, and hand-painted household knickknacks. But, nowadays, even a "major online service provider" in the field of intellectual property filings appears interested in suggesting or emulating the qualities of an artisan's handiwork: Artisan IP. Meanwhile, back to our discussion of "artisan" foods, I'm thinking it's safe to say that when Domino's Pizza adopts the term for its latest fast food pizza delivery offering, when Starbucks employs the term in naming its breakfast sandwich offering, and when Frito-Lay chooses Artisan Recipes as a trademark for its latest pre-packaged tortilla chip offering, true artisans must be in desperate search of a new title to reclaim their identity: Foodette Reviews also has noticed the incongruity of mass merchandise national chains adopting the term. I just don't think it makes one a "snob" to be bothered by the misdescriptive use. Yet, I suppose "artisan" still means something, we're just not sure what, at the moment, since it appears to be a moving target, as Nancy Friedman recently noted on her truly artisanal Fritinancy Blog (not to be confused with Artesians, of course). According to Grub Street New York (hat tip to Nancy on this find), what appears to be certain is that the marketing cachet of the word "artisan" began its rapid demise into "meaninglessness" about a decade ago when the co-opting by "giant companies" began, in order to "hawk fast-food burgers and delivery pizza." As a trademark type, given the larger-than-life bandwagon of those using the term "artisan" in connection with pizza (WeightWatchers, Wedge, Pitfire, Roundtable, Mario's, Max & Leo's, Mazzio's, and Freschetta, among others), I'm left wondering whether Artisan Pizza is the next Brick Oven Pizza — namely, a new category of pizza, rendering the term generic, and free for all to use, assuming of course, the use is not false or misleading to consumers. Last, but not least, for an excerpt from a 2003 Office Action from the USPTO refusing registration of ARTISAN as a trademark for "frozen pizza," based on deceptive misdescriptiveness, see below the jump. Mark is Deceptively Misdescriptive "The examining attorney also refused registration on the Principal Register because the mark is, potentially, deceptively misdescriptive of the goods. Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); TMEP §1209.04. A mark is descriptive if it conveys an accurate or true idea of an ingredient, quality, characteristic, function or feature of the relevant goods. If the idea conveyed by the mark is false, and also plausible, then the term is deceptively misdescriptive and is unregistrable under Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1). In re Woodward & Lothrop Inc., 4 USPQ2d 1412 (TTAB 1987); In re Ox‑Yoke Originals, Inc., 222 USPQ 352 (TTAB 1983). TMEP §1209.04. The test for deceptive misdescriptiveness has two parts: (1) does the mark misdescribe the goods, and (2) are consumers likely to believe the misrepresentation? In re Quady Winery, Inc., 221 USPQ 1213, 1214 (TTAB 1984). TMEP §1209.04. If applicant's goods are not in fact "artisan pizzas", then applicant's mark would misdescribe its goods. From the previously-attached stories, it is reasonable to believe that consumers would likely believe that applicant's goods were artisan pizzas. Although the examining attorney has refused registration, the applicant may respond to the refusal to register by submitting evidence and arguments in support of registration." Do you think the applicant could have overcome the deceptively misdescriptive refusal? Almost ten years later, is the USPTO likely to begin refusing such marks on genericness grounds?

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