“I used to say that my dad invented the breakfast burrito,” Nick Maryol, owner of Tia Sophia’s restaurant in Santa Fe, told the Santa Fe New Mexican, “but he didn’t. You know, New Mexicans have been putting bacon and eggs and potatoes and cheese into tortillas and eating it forever: He was just the first to call it a breakfast burrito and put it on a menu in the ’70s.”
Claiming ownership over the breakfast burrito, as Maryol points out, is like saying you invented a cheese sandwich when just about anyone who’s seen bread and cheese has thought to combine them. And yet someone is attempting to trademark “breakfast burrito,” a dish that has gone from a southwestern delicacy to a national favorite and brunch menu staple.
Pro Tip:— Trademarks Are Magic (@TimberlakeLaw) December 3, 2019
While it's true that the drawing and specimen should match,
the mark and the goods shouldn't
Application to register:
as a trademark for:
"breakfast burritos"https://t.co/sNdxxCSbjy#trademarks pic.twitter.com/Gp0nW0ejj0
According to the U.S. Patent and Trademark Office, the petition for “breakfast burrito” was filed on November 27. Eater has reached out to the person listed on the application, and the address listed matches that of a personal injury law firm in LA. (Eater did not hear back on requests for comment made over email and the phone by press time, but will update if and when there’s a response.) According to the application, “the signatory believes that the applicant is entitled to use the mark in commerce,” and “the applicant has a bona fide intention to use the mark in commerce on or in connection with the goods/services in the application.”
The potential trademark seems to qualify as a descriptive trademark, which Justia describes as essentially an adjective. Descriptive marks “do not identify and distinguish the source of products or services,” whereas suggestive marks “require imagination, thought, or perception to determine the nature or quality of the goods, whereas descriptive marks allow someone to draw those conclusions without putting any effort into it.” Justia uses the example of the surname McDonald. Even if it’s your surname, you can’t open a restaurant called “McDonald’s,” as the general public now associates that name with a specific brand. It all seems a bit subjective, but the question is whether “breakfast burrito” is a general descriptor, or if the applicant can prove that, when people think “breakfast burrito,” there is a secondary, brand-specific meaning.
For me, “breakfast burrito” conjures images of salsa-drenched eggs and cheese wrapped in a warm flour tortilla, not a specific restaurant or brand’s offering. But who knows? Trademarks are weird. LeBron James tried to trademark “Taco Tuesday,” and Paris Hilton succeeded in trademarking “That’s Hot.” So maybe you’ll have to order a “nonspecific morning meal tortilla wrap” from now on. Mouthwatering.