When you’re craving an amazing burrito, most of you probably run to Chipotle. When it’s a delicious, juicy burger you want, what do you think of first? White Castle? 5 Guys? For Texans, it had better be Whataburger.
If you haven’t seen the rampant media coverage yet, it has been revealed that Chipotle might just be rolling off your tongue at the thought of a meat patty between your buns. America’s beloved burrito food chain is setting itself up to deliver a “BETTER BURGER,” by applying their fast-casual model to the burger cuisine.
Wait – what?! – Chipotle is serving burgers?!
While burgers are not yet on their menus, the United States Patent and Trademark Office (USPTO) records show that Chipotle has filed for an intent-to-use application to trademark the phrase “BETTER BURGER” for “restaurant services, take out restaurant services, catering services, bar services, and providing of food and drink.” A Chipotle spokesperson confirmed it all this past week.
Source: United States Patent and Trademark Office
While broadening their menu range is completely up to the big shots sitting in Chipotle’s Denver headquarters, getting the rights to the phrase “BETTER BURGER” may not be so smooth.
There are existing trademarks that might prevent Chipotle from the rights of registering “BETTER BURGER” – and therefore prevent them from even using the mark – based on a likelihood of confusion.
- Illinois-based burger restaurant chain, Tom & Eddie’s, own the rights to the phrase BETTER BURGER BUZZ for restaurant services (identical to those Chipotle applied for) as of February 2012.
- THE ORIGINAL BETTER BURGER is a registered trademark on the Supplemental register as of July 2014 for “restaurant services.” This mark is owned by Snuffer’s, a Dallas-based burger restaurant chain that is now owned by the Firebird Restaurant Group.
- Fuddruckers, a burger chain with over 70 locations nationwide, own a few trademarked phrases encompassing “Better Burger,” including:
All of the above phrases are for “restaurant services,” the identical goods and services description as Chipotle’s application.
Not only do the above trademarks present a challenge to Chipotle’s pitch to the USPTO to register “BETTER BURGER,” but there’s also the chance that the phrase is too descriptive.
The USPTO has already argued against the words “BETTER BURGER” being registered for trademark on their own, identifying that both words are merely descriptive. “Better” is considered a “laudatory [word] or [term] that attribute[s] quality or excellence to goods and/or services.”1 The USPTO went on to say that the word “Burger” is also descriptive as it “merely describes an ingredient, quality, characteristic, function, feature, purpose or use of applicant’s goods and/or services,”2 considering that burgers are the key feature of such restaurant services that the trademark applicant intends to offer. While a merely descriptive phrase has the potential to obtain trademark registration under the Supplemental Register (just like “The Original Better Burger,” cited above), this can only be achieved if the mark is used in commerce – that is, Chipotle would have to start using the phrase “BETTER BURGER” somewhere in the U.S. to provide substantial evidence of how it is used before being approved for such trademark.
While it is up to the USPTO to approve the application in the upcoming months, the already-existing registered trademarks and the lack of descriptiveness to the phrase may just stop Chipotle from being able to deliver the “BETTER BURGER” after all.
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USPTO Office Action for Serial Number 85328451, dated September 16, 2011
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USPTO Office Action for Serial Number 85328451, dated September 16, 2011