Sarah Fackrell

Little Leaf Farms appears to be attempting to use trademark law to protect....a method of growing lettuce.

Here's the application, which claims "a three-dimensional configuration of a lettuce leaf with a curled and curved spine leading into ruffled edges" for use in connection with fresh lettuce:

https://tsdr.uspto.gov/#caseNumber=97912382&caseType=SERIAL_NO&searchType=statusSearch

#TradeDress #LittleLeaf

Trademark Status & Document Retrieval

May 15, 2023 at 12:55pmWeb
Show threadSarah FackrellMay 15, 2023

Little Leaf's VP of marketing said that the shape is "due to a type of seed that has the inherent ability to grow into a curly lettuce, which is then nurtured with a particular recipe of natural light, moisture, nutrients, and custom-built greenhouses."

https://www.fastcompany.com/90894369/can-you-really-trademark-the-shape-of-lettuce-were-about-to-find-out

So, basically, they want to use trademark law monopolize a certain method of growing this particular type of seed.

That's not what trademark law is supposed to do.

#TradeDress #Functionality #AbolishTradeDress

Show threadSarah FackrellMay 15, 2023

Okay, so, wow. Lots of questions about this part:

"Little Leaf doesn’t own exclusive rights to said seed, or else it would be filing for a plant patent application."

https://www.fastcompany.com/90894369/can-you-really-trademark-the-shape-of-lettuce-were-about-to-find-out

For more on plant patents (which only apply to asexually reproduced plants), see Chapter 11 of our free casebook:
https://patentlawcasebook.com/

CC: @jocelynbosse

#PlantPatents #PatentFedi

Show threadSarah FackrellMay 15, 2023
In addition to plant patents (those issued pursuant to 35 U.S.C. § 161), the U.S. also allows for plant protection--assuming the relevant conditions are satisfied--via utility patents (35 U.S.C. § 101) and PVPs (a regime that's actually administered by the USDA, not the USPTO): https://www.ams.usda.gov/services/plant-variety-protection
Plant Variety Protection | Agricultural Marketing Service

Show threadSarah FackrellMay 15, 2023
Anyway, IF (as this article suggests), the actual innovation here is the growing process, that is the kind of thing that could potentially be protected by a utility patent.
Show threadSarah FackrellMay 16, 2023
Btw, if you think plants x patents is an interesting area, definitely give @jocelynbosse a follow
Show threadDr Jocelyn BosseMay 16, 2023
@design_law Yes and since it's been on the market, even if they had a new variety, they've destroyed novelty by now.
Show threadJason Perseus has movedMay 15, 2023

@design_law @jocelynbosse

Ha! I could have just waited 11 seconds on my question. :)

Show threadSarah FackrellMay 15, 2023
@JasonPerseus No worries. Plant protection is super interesting but I'm still pretty new to the area. I defer to @jocelynbosse on all serious questions in that domain.
Show threadSarah FackrellMay 15, 2023
@JasonPerseus Ha, no worries. Btw, if you are interested in plant patents, @jocelynbosse is the person to follow
Show threadJason Perseus has movedMay 15, 2023

@design_law

Would this be more appropriately a patent-related kind of claim?

Show threadKathleen LuMay 16, 2023
@design_law ???
Show threadSarah FackrellMay 16, 2023
@kathleenthelaw Yeah, exactly.