January 2018. Cereal-maker General Mills recently launched a new variant of its Lucky Charms cereal: Lucky Charms Frosted Flakes. That won’t have gone down well with rival Kellogg’s, who have been marketing their own Frosted Flakes since 1953.
No protection for generic words
The big question is: can Kellogg’s do anything about it? That might be tricky, since Frosted Flakes consists of two purely descriptive words, and you can’t claim trademark protection for a generic word combination. A glance at the US trademark register also reveals that Frosted Flakes hasn’t been registered as a word mark for cereals. That’s the downside of descriptive brand names: while they tell the consumer very clearly what the product is about and make life easy for marketers, they can’t be legally protected.
However, Kellogg’s might be able to claim acquired distinctiveness for its trademark. This is the case when a descriptive trademark ‘breaks free’ of its purely descriptive nature and is seen by the public as a trademark. EasyJet is a good example of a name that’s largely gone beyond its descriptive character through frequent advertising and use. Could the same be demonstrated for Frosted Flakes? Kellogg’s has after all been using the trademark for over 60 years. Watch this space.