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[author: Brent Lorentz]
How many of you have experienced the purportedly divine dining experience of Kobe beef? According to a recent article, the number is probably substantially lower than believed. According to Forbes, the vast majority of Kobe beef is not, in fact, Kobe beef. That’s because it is apparenlty unlawful for real Kobe beef to be imported from Japan. “Kobe” is a registered trademark in Japan and the beef can only be deemed “Kobe” beef it came from the Hyogo Prefecture in Japan.
How have we all been duped for so long? According to the author of the Forbes article, its becaue Kobe is not protectected as a trademark or otherwise regulated by U.S. law; accordingly, restaurants and grocery stores can simply stick it on the label with no consequences. With due respect to the author, I disagree.
Trademark law has a policy of avoiding “geographically misdescriptive” marks. Such marks are not eligible for registration and potentially could give rise to a false advertising claim. This whole fiasco calls to mind a case from the 1960′s where the a court considered whether or not a defendant could call its cheese “Roquefort” cheese even though the cheese did not come from the Community of Roquefort in France. Granted, the Roquefort case involved slightly different legal issues, as the Community of Roquefort had registered a certification mark in the United States. Certification marks typically mean that someone has confirmed that the product is genuine. So, in the case of cheese, for example, the Roquefort mark certifies that the cheese actually comes from Roquefort, France.
Here, it does not appear that Kobe has not been registered as a certifiction mark in the U.S., and this is unsurprising given the fact that the genuine article does not seem to be sold in the U.S. However, there are plenty of Kobe beef imitator marks that have been registered and would appear to be geographically misdescriptive of the goods provided. I, for one, feel deceived. How about you?
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
© Winthrop & Weinstine, P.A.
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