Trademarks Making Advertising Claims Create Sticky Situations

Brands are accustomed to clearing trademarks to determine whether they violate a third party's intellectual property. To that end, they may request their trademark attorney evaluate trademark searches and advise regarding the mark's availability for use and/or registration. In so doing, their counsel will consider the proposed trademark's distinctiveness as well as any likelihood of confusion it creates in the marketplace. A third factor for evaluation may also be relevant. Could the trademark also be an advertising claim? Does the trademark convey a false or misleading express or implied claim about the product or service?

SharkNinja Operating LLC sells and markets a line of non-stick cookware products under its brand name "Foodi NeverStick." Sunbeam Products, a competitor to SharkNinja, challenged the product name and the advertising claims before the NAD. In its national advertising, SharkNinja claimed that NeverStick cookware "never sticks, chips or flakes." It also encouraged consumers to "grab the cookware that never sticks." Finally, it asserted that the products had a "lifetime guarantee."