Earlier this month, The New York Times published an article entitled “If the Word ‘How’ Is Trademarked, Does This Headline Need a ™?” Thereafter, numerous other news media outlets including Forbes, The Guardian, and Business Insider released their own stories about the ongoing trademark dispute between Chobani and Dov Seidman, a bestselling author and ethics consultant. Some poked fun at how anybody could own a word “[a]s old as the Proto-Indo-Europeans themselves.” Others accused Chobani of building a “billion-dollar business” on a “stolen marketing tactic.” The lawsuit raises interesting questions about the intersection between trademark law and advertising slogans.
Seidman is the founder and CEO of LRN, an ethics and compliance consulting firm. He became something of a celebrity in the field of business ethics after publishing a book called How: Why How We Do Anything Means Everything in 2011. The book includes a foreword by President Bill Clinton and reviews by Elie Wiesel and Thomas Friedman.
The word “how” is central to both Seidman’s book and consulting philosophy, which raise questions abouthow businesses should operate, how businesses should promote corporate responsibility, and, in the words of the book’s preface, how businesses should “outbehave the competition.” Seidman’s website,http://www.howistheanswer.com/, features a video entitled “HOW Matters Because…” in which LRN “colleagues” discuss the company’s “How Is the Answer” campaign. Seidman owns two federal trademark registrations for the word “HOW” and six pending trademark applications that incorporate the word, such as “The How Report,” “How Is the Answer,” and “How Metrics.”
Earlier this year Chobani launched its “How Matters” advertising campaign, which has thus far culminated in a 60-second Super Bowl commercial. Advertising agency Droga5 described the campaign’s purpose as “communicating the brand’s pursuit of a more nutritious world through its mission to make delicious, widely accessible foods with only natural ingredients.”
On June 4, 2014, Dov Seidman filed a complaint in the Southern District of New York accusing Chobani and Droga5 of trademark infringement. In his complaint, Seidman notes a Tweet that Chobani sent him on the eve of the campaign’s launch, which read, “Thanks for inspiring the world to care about ‘how.’ Can you help inspire the food industry too?”
Seidman will no doubt have to climb through some significant legal hurdles in order to prevail in his trademark claims against Chobani. Perhaps the biggest hurdle of all will be proving that Chobani’s use of “How Matters” as part of a Greek yogurt marketing campaign would cause a likelihood of confusion with his own use of “How” in connection with business ethics consulting services. But Seidman is convinced he can build his case on an appropriation theory. As he mentioned to The New York Times, “They are using ‘How’ exactly the way I use it. They’ve appropriated the foundation of my entire philosophy.” As the lawsuit unfolds, it will be interesting to see how Seidman’s trademark claims unfold.
The case is Seidman et al. v. Chobani, LLC et al., case number 1:14cv4050 in the U.S. District Court for the Southern District of New York.