Gravy candle. Yes, you heard me right. Gravy candle. If you thought the smell of Kentucky Fried Chicken’s crispy fried chicken enveloping your home from the fireplace was not enough, KFC agreed with you. That’s why it announced the KFC gravy scented candle. Unfortunately for U.S. consumers, the candle is available only in the United Kingdom and only 230 are being manufactured.
As we discussed last December, KFC could acquire and maintain trademark rights in the United States for its mark in connection with candles even if the use on candles is limited throughout the year. The key is that the company would have to repeat this promotion each year. Not only is KFC’s decision to offer a fire log and candle under its brands a brilliant public relations tactic, but it is also an opportunity to increase the fame – for likelihood of confusion purposes – of its brands.
The United States Court of Appeals for the Federal Circuit has said that in the absence of direct evidence of fame the “fame of a mark may be measured indirectly by . . . the variety of goods bearing the mark.” Coach Services, Inc. v. Triumph Learning LLC, 101 USPQ.2d 1713, 1720 (Fed. Cir. 2012). And strong marks cast a long shadow that competitors must avoid. It would seem like a no brainer that KFC should be filing new trademark applications for its brands in connection with a fire log and gravy candle, but to date it has not.
The Federal Circuit’s decisions on the issue of fame do not require the trademark owner to federally register its brands for all the goods or services it offers under the marks. But there is so much benefit that comes with a federal registration, and some of those benefits are a presumption of trademark validity, ownership, and the exclusive right to use the mark in connection with registered goods or services.
The goods new is it is not too late for KFC to change course and file some of these applications because as we seen in prior cases the sooner you file the trademark application the better.