Say what you want about American intellectual property law (and I do), but it certainly lets people try their luck at obtaining just about any sort of mark or patent, even if the application is ultimately rejected. It’s undoubtedly someone’s notion of the American ideal that ambition in this arena not be bound by common sense or an actual understanding of the law but solely by their willingness to try and get one over on the governmental bodies in charge of intellectual property rights. It’s the freedom to try anything you want, no matter how stupid or futile it might be, that is fundamentally American, you might argue. It probably won’t work out, but at least you tried.
One such enterprising soul is the as-yet-unidentified person or persons who filed a trademark application for breakfast burritos. At first blush, you might think that the breakfast burrito is a ubiquitous item at this point, served at establishments all over the country, and you would be right. You might also think that such ubiquity would make for a difficult case as it comes to trying to claim some sort of ownership over the breakfast burrito, and you would again be right. Where understanding leaves us is in trying to puzzle out the thinking on why the application was filed, and what the applicant hoped would be the outcome. It seems unlikely that this applicant was the true inventor of the breakfast burrito, which means that they are instead someone who thinks that they can perhaps sneak the application through the USPTO and get an incredibly valuable trademark at the mere price of an application.
While it seems a near certainty that the application will be rejected, it’s not the first or last instance of someone trying to be the one who claims ownership of a widespread concept. LeBron James made his own attempt at trademarking “Taco Tuesday” despite the fact that the phrase and idea are so widespread that even restaurants without tacos on the menu probably participate, because who doesn’t love tacos and alliteration? And LeBron certainly isn’t alone in taking a shot at an unlikely trademark: The Ohio State University tried to trademark “the” (pronounced “thee” if you’re an insufferable Ohioan) only to find that it had been beaten to the punch by designer Marc Jacobs; in any case, both will undoubtedly fail in their applications.
But people will continue to try, and maybe one or two will slip through and get approved against all better judgement or common sense, and that’s enough to keep the applications coming in. In our current system, perhaps the only way to fail is not to try.
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