1. As it turns out, everything I ever needed to know about Dunkin Donuts, I learned from a Jim Gaffigan sketch. Dunkin Donuts recently attempted to trademark “America’s Best Coffee” with the United States Patent and Trademark Office, but was issued an initial denial. Trademark law 101 considers Dunkin’s proposed slogan to be merely laudatory. Laudatory words or terms that attribute quality or excellence to goods and services are considered merely descriptive and therefore ineligible for trademark protection.  TMEP §1209.03(k).  Laudatory terms, phrases, and slogans are nondistinctive and unregistrable on the Principal Register without proof of acquired distinctiveness.  See In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001) (holding THE ULTIMATE BIKE RACK a laudatory, descriptive phrase that touts the superiority of applicant’s bicycle racks); In re Boston Beer Co., 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir. 1999) (holding THE BEST BEER IN AMERICA a laudatory, descriptive phrase for applicant’s beer and ale). This is probably not a rookie mistake by the capable and well-paid counsel to Dunks. This initial denial to the application just lays the groundwork for them to establish a claim of acquired distinctiveness for the mark. Stay tuned.

All USPTO applications and their affiliated documents are a matter of public record. You can search for them here at the Trademark Status and Document Retrieval Portal. The serial number for Dunk’s application is 85739062. Follow the saga if you are into that sort of thing.

2. Via Civil Eats, a thought provoking piece on the future of organic agriculture. As a point of clarification, I think the threat posed to the organic brand from conventional foods labeled “natural” or “wholesome” or whatever is overstated.  How incredulous are you when you see that ridiculous commercial for Nature’s Valley sugar bars? Those sorts of nebulous marketing terms are already bunk in the eyes of  truly discerning consumer. The standards for organic agriculture, however, are static and are apt to cause a public outcry anytime an attempt is made to change them. The actual threat to organic agriculture or organic products is not General Mills or maleable marketing terms, but local foods. That’s the word on the street anyway. Organic and local compete for the same affluent, discerning consumer. The real dichotomy of choice is not “big ag” versus “organic” but “premium niche” versus “premium niche”. The lack of a definite standard for “local” compounds the threat – the Consolidated Farm and Rural Development Act of 2008 for example defined “local” as anything produced within a 400 mile radius. That is just over 500,000 square miles, or an area the size of Paraguay.

3. Farm sales in commodity states like Iowa are up sharply in anticipation of big changes in the tax code as we creep ever nearer to the Fiscal Cliff.

If Congress fails to resolve the “fiscal cliff” before the end of the year, a number of automatic tax increases and spending cuts will be triggered on Jan. 1. That includes capital gains taxes increasing from 15 percent to 23.8 percent, and the allowable deduction on estate taxes would drop from roughly $5 million to $1 million.

A few parcels are fetching in the neighborhood of $15,000 per acre. At those prices, the sale of even a modest sized farm of 200 acres has huge tax consequences.