Claire Brown
But it can’t trademark that description. Why nobody should get to own basic language

Commentary Shelf

Whole Foods Market this week was told by the U.S. Patent and Trademark Office that it couldn’t register “The World’s Healthiest Grocery Store” as its trademark.

Whole Foods has heard it all before.

It’s not that the office disagreed with WFM’s opinion of itself. It’s that “world’s healthiest,” in PTO’s view, is merely descriptive of WFM’s services. And you can’t trademark a simple description. Here’s the way PTO described the situation (minus a ton of citations and quotations-within-quotations, which you can read in full here): “Marks that are merely laudatory and descriptive of the alleged merit of a product are regarded as being descriptive because self-laudatory or puffing marks are regarded as a condensed form of describing the character or quality of the goods or services. In fact, puffing, if anything, is more likely to render a mark merely descriptive, not less so.” That, PTO explains, is why it didn’t let Nett Designs call its product “The ultimate bike rack” and why Boston Beer couldn’t trademark “The best beer in America.”

The logic about puffery and description may seem convoluted, but the point is fairly clear. And Whole Foods has heard it all before–like back in 2010, when it applied for a trademark for “America’s Healthiest Grocery Store.”

Back then, Whole Foods appealed. As BrandChannel explains, “Pointing to the numerous definitions of the word ‘Healthy,’ Whole Foods claimed that consumers could construe the word “healthiest” to convey the supermarket’s strong financial condition, its extensive offering of products, its clean and sanitary conditions, or even the supermarket’s large size. Because of this, Whole Foods claimed that the slogan did not merely describe service that was suggestive of good health.”

Personally, I’d translate this to: We made up a slogan that was as clear as it could possibly be, but for purposes of trademark, we’d like to argue that it means anything but what we intended it to mean.

WebApparently, PTO bought it. WFM got the trademark. It’s up for renewal in 2018. WFM has the right to similarly appeal the decision on “World’s Healthiest.”

I hope WFM loses. In the world of business, we all need to get out and say nice things about ourselves now and again. If individual companies start owning the basic language of promotion, it makes it hard on everyone else. If WFM gets its new trademark, and another grocery store finds the need to let its customers know that in fact its grocery store has the healthiest food on the planet, it can look forward to an unpleasant conversation with the chain’s lawyers.

Think it couldn’t happen? According to the Wall Street Journal, back in the 90s, the state of Utah wanted to issue license plates emblazoned with the phrase “Greatest snow on earth.” Ringling Brothers sued, based on a raft of trademarks it holds entitling it to exclusive use of “Greatest show on earth” on program books, coloring books, stuffed toys, t-shirts, binoculars, databases—you name it. Ringling lost, appealed, and kept appealing all the way to the Supreme Court, which declined to hear the case.

Legal issues aside, the case raises a couple of issues for me:

(1) It is kind of creepy for companies to have exclusive ownership of words that might be used to praise them—or might be used to praise someone else. Even if I thought Whole Foods was the healthiest grocery store, I want to leave open the possibility that someone else is going to be the healthiest food store tomorrow. I’m not thinking of awarding an official “World’s healthiest grocery store” designation by election. (Given this year’s politics, we’d probably end up selecting 7-Eleven.) But judgmental language shouldn’t be owned by the people being judged.

Web(2) Whole Foods is right that “healthy” means a whole lot of things, and if you’re serious about health, you might have second thoughts about WFM staking that particular claim. I buy the idea that an individual can put together the ingredients for a pretty healthful meal at a Whole Foods, but an individual can put together a healthful meal at lots of stores. Is Whole Foods claiming that the food it sells will keep you healthier than the food at other stores? It kind of depends on what you buy; there’s plenty of sugar and empty calories in Whole Foods as well as plenty of good stuff. That it benefits the health of the community? Well, maybe, if it’s a really rich community.

Health matters. Healthful food matters. And at some point, if you care about those things, the use of puffery and promotional language to describe food and to promise health really starts to stick in your craw. Whole Foods isn’t the healthiest grocery store on earth. There’s no such thing. We don’t actually need such a thing. There may be stores that are awful and damaging to your health, but once you get past a certain level of quality, once you can feed yourself well from a store, it’s time to start worrying about other things: fairness, access, price, sustainability.

It’s not that we don’t appreciate the effort, Whole Foods. It’s that like everyone else, we’ve got a lot on our plates.

Patrick Clinton

Patrick Clinton is a long-time journalist and educator. He edited the Chicago Reader during the politically exciting years that surrounded the election of the city’s first black mayor, Harold Washington; University Business during the early days of for-profit universities and online instruction; and Pharmaceutical Executive during a period that saw the Vioxx scandal and the ascendancy of biotech. He has written and worked as a staff editor for a variety of publications, including Chicago, Men’s Journal, and Outside (for which he ran down the answer to everyone’s most burning question about porcupines). For seven years, he taught magazine writing and editing at Northwestern University's Medill School of Journalism.