After Over Two Decades Of Non-Enforcement, Produce Company Invokes Trademark On ‘Broccolini’

I think it best to start this post off with an admission: I had no idea that broccolini" was not the name of an actual vegetable, but rather a trademarked brand name. I can't see your faces, obviously, but I imagine some sizable percentage of them also have a look of mild surprise on them.

Well, it's true. Broccolini" is a registered trademark of Fresh Del Monte Produce, distributed by its subsidiary, Mann Packing. And if you're wondering how it's possible that the term is out there in grocery stores and restaurants all over the place without the trademark symbol appended next to it, that's because for 25 years FDMP has declined to enforce the mark. I've dug around a bit and I cannot come up with examples of lawsuits or C&D notices being sent out regarding this trademark. That, generally speaking, is how marks lose their distinctive nature and become generic.

Well, FDMP wants to unring that bell, it seems. The company has put out all kinds of press releases and social media campaigns to educate the public about its trademark, the history of the hybrid plant, and to remind everyone that it has a trademark it may choose to enforce.

The term Broccolini is more than just a name to us-it's a symbol of our company's commitment to quality and innovation," says Melissa Mackay, Vice President of Marketing, Fresh Del Monte Produce. We helped develop Broccolini baby broccolimore than a quarter of a century agoas a broccoli and Chinese kale hybrid from an exclusive seed that produces long, tender, and edible stems you simply can't get anywhere else."

According to a press release, while some restaurants may advertise that they're selling broccolini, there is little evidence they are serving actual Broccolini(R)-the trademark for that proprietary type of baby broccoli created over 25 years ago by Sakata Seed Company.

For the time being, the company has said this is an educational campaign only. But it sure also feels like it is trying to lay the groundwork for enforcement somewhere down the line. Broccolini has reportedly seen an uptick in popularity in grocery stores and restaurants in recent years and you can almost smell the executives at FDMP wanting to control that market more. And the company is hinting as much in its public statements.

While this campaign is intended as an educational opportunity to remind the foodservice industry that our product name cannot legally be used generically, we are serious about protecting our trademark," explains Mackay. It's important for consumers tounderstand the Broccolini differenceand know that the name matters. If restaurant menus are not accurately referring to the product by name, it can be misleading to customers who expect a certain level of flavor and quality."

Serious about protecting your trademark? Why start now?

Joking aside, the point is that after all these years of not enforcing the mark, I would think it would be trivially easy for a defendant at trial to conduct polling of the public asking them if they have any idea, as I didn't, that broccolini" is a trademark and not the generic name of a vegetable. Whether FDMP actually wants to try to sue anyone so that we can find out if I'm right remains to be seen.