Barbecue term catches fire on social media; who will get smoked on trademark rights?
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If you like barbecue and use social media, you may have heard of Walter Johnson, a senior citizen social media influencer who goes by “Mr. Tendernism.” It references a term that he uses to describe smoked meat so tender that it falls right off the bone.
In November, a North Carolina civil litigator who didn’t know Johnson filed two trademark applications for “Tendernism” for restaurant services and clothing.
“I didn’t know what his plan was. I was worried. Our history in the African American community is that we create intellectual property, but we don’t benefit from it. So I went ahead and preserved the business opportunity and then tried to reach out to him,” says Ken Harris, who practices in Charlotte, North Carolina.
Diamond Smokehouse Enterprises Inc., which owns the California restaurant featuring Johnson’s videos, filed two trademark applications the following months arguing that it’s the company’s rightful owner, Black Enterprise and the Charlotte Observer report. The matter is ongoing.
Harris told the ABA Journal that he has since connected with the influencer.
“We were both relieved when I had a chance to start interacting with him and his team. We were able to develop a relationship and move forward,” Harris says.
He told the Journal that he and Johnson have a business relationship, but he does not represent him.
Johnson did not immediately respond to a Journal interview request. Neither did Destination Smokehouse, the restaurant where Johnson worked. It’s associated with Diamond Smokehouse Enterprises, Black Enterprise reports.
Harris says his plan is to transfer the applications to Johnson, “subject to approval” of the U.S. Patent and Trademark Office.
That’s unlikely, says Yolanda King, an intellectual property professor at the University of Illinois Chicago School of Law. According to her, generally, you can’t assign an intent-to-use application without showing prior use.
“Under the Lanham Act, that just won’t work. I don’t see how [Harris] could claim it because he’s not using it and doesn’t have a bona fide intent to use it,” say King, who directs the law school’s Center for Intellectual Property, Information and Privacy Law.
She adds that you might be able to assign an intent-to-use application without showing prior use, if the assignee is a successor getting the applicant’s business. Also, she says, people do seek to claim trademark rights for something that they think has value, but it’s often not effective.
“I do think it’s odd the attorney filed it as a way to protect the term from being exploited by other people,” King says.
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