An application was filed with the U.S. Patent and Trademark Office last week.

By Mike Pomranz
December 04, 2019
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Some food items are obviously tied to a brand: the Big Mac, for example. Others dish may not be officially trademarked but have well-known origins—like the Caesar salad and its Tijuana backstory. But what about the breakfast burrito? That's just a generic food, right—a burrito eaten at breakfast time that anyone can make? Not so fast. Someone is trying to trademark the term.

Recently, the Twitter account for Timberlake Law—a North Carolina based specialist in trademarks and copyrights—posted a link to the United States Patent and Trademark Office's website for an application to trademark the term "Breakfast Burrito."

Though most people will inherently sense that this seems ridiculous, Timberlake does a good job of spelling out the reason: "While it's true that the drawing and specimen should match, the mark and the goods shouldn't," the tweet explains. To put it another way, the application seeks to trademark the phrase "Breakfast Burrito," but in the section where the applicant explains what the trademark is for, the answer is "Breakfast burritos; Burritos." Basically, if the only way you can describe what you're trying to trademark is by using the same phrase as the trademark, then there's a solid chance that the phrase is common enough that it can't be trademarked in the first place. It doesn't take much legalese to understand that.

So who exactly wants the rights to eggs wrapped in a tortilla in the morning? Eater attempted to get to the bottom of this application and, unsurprisingly, didn't get very far. The site "reached out to the person listed on the application," whose address "matches that of a personal injury law firm in LA," but "did not hear back on requests for comment made over email and the phone by press time."

So what's this all amount to? Likely very little. Anyone with a few hundred bucks can attempt to trademark anything. Receiving a trademark and then protecting it is far more difficult, and based on the assessment of Timberlake and findings of Eater, this attempt to register "Breakfast Burrito" appears to be a random shot in the dark.

That said, even the greatest among us aren't beyond taking wild shots in the dark. Back in August, LeBron James—one of the G.O.A.T.—tried to trademark the phrase "Taco Tuesday," a term that is both ubiquitous and, famously, already trademarked (at least for the purpose of selling tacos). Unsurprisingly, the Patent and Trademark Office denied his request within a month. According to the New York Times, the office explained that the phrase is "a commonplace term, message or expression widely used by a variety of sources that merely conveys an ordinary, familiar, well-recognized concept or sentiment."

That doesn't set a good precedent for whoever submitted this "Breakfast Burrito" application.

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