Laying It on Thick? Seidman v. Chobani LLC

Laying It on Thick? Seidman v. Chobani LLC

Yogurt is big business. In order to separate itself from its competitors, Chobani’s advertising agency, Droga5, launched the yogurt maker’s “How Matters” campaign in a 2014 Super Bowl commercial. Dov Seidman, Harvard law grad, author of “How: Why How We Do Anything Means Everything,” and head of his own business ethics consulting company, LRN, has filed suit, claiming that Chobani has infringed on his 2013 trademark of the word “how.”

Grease used to be the word, but now, according to Seidman, “how” is thanks, in part, to his introduction of the adverb-turned-noun to the corporate world. Per his comments in a recent New York Times story:

“They’re using ‘how’ to convey and connote that they are an ethical company,” he said of Chobani. “They are using ‘how’ exactly the way I use it. They’ve appropriated the foundation of my entire philosophy.”

As the story notes, trademark law is not intended to prevent theft of others’ ideas but, rather, to prevent consumer confusion. According to Times source James D. Weinberger, a trademark lawyer at Fross Zelnick Lehrman & Zissu, this case may become about theft rather than infringement.

“In the end, the jury may be wrestling with whether they stole this guy’s idea or not, even if that’s not what trademark law protects.”

So how did Droga5 develop the controversial marketing campaign? Again, according to the Times, during a brainstorming session at a Thai restaurant’s open kitchen that “underscored the importance of how food is prepared.” Interestingly, Chobani gave Seidman’s work a nod in a January 29 tweet just prior to the Super Bowl.

“@DovSeidman: Thanks for inspiring the world to care about ‘how.’ Can you help inspire the food industry, too?”

Despite the company’s tweet, its agency contends that the creative team had never heard of Seidman when it began developing the branding campaign. Per an ABA Journal write-up, Chobani and Droga5 have asked the court to cancel Seidman’s trademark registration of “how” because it is too broad.

According to DailyFinance, Seidman applied for a number of trademarks for multiple uses of “how” in 2013.

“… in law, ethics, business regulatory compliance, legal compliance, business conduct and governance and related areas. The trademarks would cover publications, consulting services, educational services, software — even board and card games. No mention of yogurt or of ‘How Matters.’”

“How” does matter to Seidman. Whether it amounts to Chobani being dinged for trademark infringement remains to be seen. What do you think? Is Seidman’s case warranted or does it lay it on thick? Please comment below.

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