No, I’ll Have an Arnold Palmer

I may be a bit late to this example, but I start teaching Trademark Law again next Monday, so I’m in full “trademark questions are everywhere” mode.  I discovered today that Arnold Palmer, extraordinary businessman, famous and successful golfer, Western PA native, and all-around good guy, has licensed his name and likeness to the AriZona Iced Tea folks.  Arnie has the details here.  The drink itself is an “Arnold Palmer,” equal parts lemonade and iced tea, and Arnold Palmer’s name, signature, and photo appear on the can and bottle.

What would it take to infringe Arnie’s rights here?  Suppose, in other words, another company comes along and markets a bottled or canned beverage that it identifies as equal parts lemonade and iced tea.  No photo of Arnie on the packaging, and no signature (those would both cause trademark and/or right of publicity-privacy problems), but in block letters the package says:  “Arnold Palmer.  Lemonade and iced tea,” and that’s what the package contains.

Palmer’s company (which owns his rights) and licensees (which produce the AriZona Beverage version) sue the newcomer.  The accepted history of the drink known as an “Arnold Palmer” holds that Arnie himself came up with it, and is associated with it, but the drink itself is served in bars and restaurants across the country, and especially at golf and country clubs, and has been for years, without Palmer’s making much of a fuss.  I strongly suspect that lots of places even list the “Arnold Palmer” on their drink menus.  I was in a fish place in the Silicon Valley two weeks ago and someone in the group ordered an Arnold Palmer and got lemonade and iced tea — exactly as expected.

Who wins?  Is “Arnold Palmer” generic for “lemonade and iced tea”?

3 thoughts on “No, I’ll Have an Arnold Palmer

  1. Hey Mike — I’m in TM mode too, starting on Monday too, so this is good exercise.

    It seems like a pretty clear lack of secondary meaning to me. AP himself isn’t established as the sponsoring source of any drink called the AP — at least not yet. In theory, I guess it is possible for a term to go from a generic term to one possessing 2M, but it seems like a long shot.

    Check out Wikipedia, the editors of which define this as a generic term:
    http://en.wikipedia.org/wiki/Arnold_Palmer_drink

    Check out Arnie’s website, which also seems to acknowledge the term is being used in a generic sense:
    http://www.arnoldpalmertee.com/news.asp

    Btw, “Arnold Palmer Tee” is indeed a registered trademark — ser. No. 78150585. However, I think it is important that they registered it as the design plus the whole word — it would be interesting to look at the file and see if there was any back-and-forth.

    I’m curious as to how the right of publicity would play into this, which seems like a closer issue. I would still say no dice under applicable ROP laws, but your mileage may vary.

  2. p.s. Having now clicked the TESS button to look at the file, I see there was no back-and-forth.

  3. This fascination is inescapable. I am a law student on the IP track at Seton Hall University, and am also an Arnold Palmer beverage addict. I just learned today that SHU stocks Snapple “Half & Half”, a blend far inferior to Arizona’s formula. I proposed this question concerning Mr. Palmer’s/Arizona’s trademark rights at least two times today. It’s good to see I’m thinking on the right track.

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