Wolfing down those veggies: it's a matter of the right descriptive term

Ask a trademark attorney about descriptive marks, and she will tell you that they are ineffective as a source indicator. As such, descriptive marks usually give rise to one of two strategies: (i) argue that the mark is not generic, with the hope that secondary meaning/acquired distinctiveness can later be shown; or (ii) argue that the mark is ab initio suggestive (in US trademark parlance), rather than descriptive, and thus inherently distinctive. This Kat has been immersed in this way of looking at descriptive marks for more than 30 years (sigh).

It is refreshing, therefore, to consider descriptive marks from a quite different perspective.This Kat’s attention was drawn to a report on cnn.com of a recently published research report— “Association Between Indulgent Descriptions and Vegetable Consumption: Twisted Carrots and Dynamite Beets”, by Bradley P. Turnwald, Danielle Z. Boles, and Alia J. Crum. If the title has not already whetted Kat readers’ palates and minds, consider the problem under scrutiny: are some words better than others in inducing students (at Stanford University, no less) to prefer healthy foods?

In the words of the study—

"Ironically however, health-focused labeling of food may be counter-effective, as people rate foods that they perceive to be healthier as less tasty. Healthy labeling is even associated with higher hunger hormone levels after consuming a meal compared with when the same meal is labeled indulgently. How can we make healthy foods just as appealing as more classically indulgent and unhealthy foods [citations omitted]?"

The study went on to label vegetables in one of four ways: basic, healthy restrictive, healthy positive or indulgent. Basic meant calling the vegetable by its name (certainly a generic use of the relevant words); the healthy restrictive category employed such terms as reduced-sodium corn or lighter-choice zucchini; and healthy positive included such terms as vitamin-rich corn and nutritious green zucchini. For indulgent descriptions, terms such as rich buttery roasted sweet corn and slow-roasted caramelized zucchini bites were used. The researchers then measured which category of term led the students to put more vegetables on their plate as well as to actually wolf down the chosen vegetables.

The big winner were the indulgent labeled veggies. They were 25% more likely to be taken than basic labeled vegetables. Even more notably, 35% more students chose indulgent labeled vegetables over healthy positive labels; and 41% more selected indulgent labeled vegetables over healthy restrictive labeled vegetables. As for consumption, indulgent labeled vegetables were consumed 23% more than vegetables labeled in a basic fashion, and a 33% increase was found when indulgent labels were used in comparison with the amount of vegetables consumed under a healthy restrictive label. There was no statistical difference in consumption in comparing indulgent labels with healthy positive labels.

There are two ways to look at these results. First, let the authors explain their findings:

“These results challenge existing solutions that aim to promote healthy eating by highlighting health properties or benefits and extend previous research that used other creative labeling strategies, such as using superhero characters, to promote vegetable consumption in children. Our results represent a robust, applicable strategy for increasing vegetable consumption in adults: using the same indulgent, exciting, and delicious descriptors as more popular, albeit less healthy, foods. This novel, low-cost intervention could easily be implemented in cafeterias, restaurants, and consumer products to increase selection of healthier options.”

We know that “healthy” means that it is good for us, but translating thought into action at the university cafeteria is not straightforward. Terms like those that entice us to eat junk food also tend to increase our likelihood to eat those healthy veggies (although what happens when the veggies are placed contiguous to the crisps and pastry, indulgent terms or not?)

From a trademark point of view, the results described above offer an interesting challenge, namely how to find indulgent terms that lie at the divide between a descriptive and suggestive mark. “Good evening, Mr. Phelps, your mission” is to convince the examiner that the mark using an indulgent terms is inherently distinctive. If successful, the registrant gets exclusive use of the term, which will have the potential to attract more custom than the various descriptive terms.

All in all, food for thought (sorry about that).

Picture on top right by Evelynfabi 95