MRKT 661 Week 3 Professional Memo Analysis Example

Professional Memo Analysis: Protecting the Name, Can Design, Recipe and Label Art of a New Canned Cold Brew

Memo

To: Dana Whitfield, Marketing Director, Kettle Hollow Coffee Company

From: Associate Brand Manager

Date: October 17, 2026

Subject: Protecting the name, can, recipe and label of Kettle Hollow Cold Brew before launch

Summary. Before the March launch, we should file a federal trademark application for the name now on an intent-to-use basis, treat the can's black-and-copper design as trade dress and document its use, keep the cold brew recipe as a trade secret under written confidentiality agreements, and register the label artwork for copyright. Together these steps cost little compared with the launch budget and protect the assets competitors would most want to copy. The memo explains general legal principles and should be confirmed with outside counsel before filing.

Background

Kettle Hollow will launch a canned cold brew in March in 300 grocery and convenience stores across Virginia and North Carolina. The product has four assets that give it value: the name Kettle Hollow Cold Brew; a matte black can with a single copper band around its middle; a recipe that steeps a blend of three beans for twenty hours with a small amount of chicory; and label art showing a hand-drawn hollow with a kettle on a fire. Trademarks, trade dress, trade secrets and copyrights each protect a different kind of asset, and the intellectual property chapters of Oswald (2011) treat them separately, so the question for each asset is which protection fits.

The Name: Federal Trademark Registration

Courts classify marks on a spectrum of distinctiveness. The Second Circuit's classic statement of the categories (Abercrombie & Fitch Co. v. Hunting World, Inc., 1976) names them generic, descriptive, suggestive, and arbitrary or fanciful, with protection increasing along the spectrum. Generic terms, such as "cold brew," can never be protected, and descriptive terms need proof that consumers associate them with one source. "Kettle Hollow" does not describe coffee; it is at least suggestive and likely arbitrary for this product, so it should be registrable without proof of secondary meaning.

The Lanham Act lets a company apply to register a mark it has a bona fide intention to use, before sales begin (Lanham Act, 1946). Filing now matters because, once the application leads to registration, our priority dates from the filing, which protects us against a competitor who adopts a similar name in the months before launch. Registration also gives nationwide notice of our claim and the right to sue in federal court. Before filing, counsel should run a clearance search for similar marks on coffee and related beverages, since a confusingly similar earlier mark could block us.

The Can: Trade Dress

The black can with a copper band is our most recognizable visual asset. The Lanham Act protects trade dress, the overall appearance of packaging or a product, against confusingly similar imitation. The Supreme Court ruled (Two Pesos, Inc. v. Taco Cabana, Inc., 1992) that a restaurant's look could be protected without showing that customers already linked it to one source, because inherently distinctive trade dress needs no such showing. Eight years later the Court separated the two (Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 2000): a product's own design always needs proof that buyers connect it with one maker, whereas its packaging may qualify as distinctive from the start. Our can is packaging, not the product itself, so it falls on the more favorable side of that line.

The copper band raises a related question. The Court has also held (Qualitex Co. v. Jacobson Products Co., 1995) that a color can serve as a trademark if it has acquired secondary meaning and is not functional. We should not claim copper alone at launch, since we have no sales history, but we should use the band consistently on every can and in all advertising, so that a later claim, if needed, has evidence behind it. Trade dress rights grow with consistent use, so the most important step for the can is discipline in how we use it, not a filing.

The Recipe: Trade Secret

A patent would require us to publish the recipe and would expire, and a steeping process using known ingredients may not be novel enough to qualify. Trade secret law is a better fit. Under the Defend Trade Secrets Act of 2016, the owner of a trade secret may bring a federal civil action for misappropriation, provided the owner has taken reasonable measures to keep the information secret (Defend Trade Secrets Act of 2016, 2016). Reasonable measures for us include confidentiality agreements with our co-packer and every employee who knows the recipe, limiting the full recipe to three people, and labeling recipe documents as confidential. Protection lasts as long as the secret is kept, which for a recipe can mean decades.

The Label Art: Copyright

The hand-drawn hollow and kettle are original artwork, and copyright protects them from the moment they are fixed. Registration is still worth the modest fee. The Supreme Court has ruled (Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 2019) that, with narrow exceptions, an owner must wait for the Copyright Office to register or refuse the work before suing for infringement. If a competitor copied our art, waiting months for registration could let the copy stay on shelves. We should also confirm in writing that the freelance illustrator assigned the copyright to us, since a work made by an outside contractor does not automatically belong to the company that paid for it.

Limits of These Protections

None of these steps will stop a competitor from selling cold brew, using chicory or adopting a dark can of its own. Intellectual property protects our particular name, look, art and secret, not the idea of the product, and a rival that chooses a clearly different name and design is free to compete. The protections also depend on our own vigilance. A mark that the owner never polices can weaken as similar names spread, and a trade secret that an employee discloses without an agreement in place may be lost for good. Like any legal right, these protections are worth only as much as our willingness to enforce them, so we should budget for a simple watch service that flags new trademark filings similar to ours and for a cease-and-desist letter if one appears.

Recommended Actions

• 1. Legal counsel: complete a clearance search and file an intent-to-use application for Kettle Hollow Cold Brew within two weeks.
• 2. Brand team: adopt a style guide fixing the can's black finish and copper band for every package and ad, and archive dated examples.
• 3. Operations: obtain signed confidentiality agreements from the co-packer and the three recipe holders before production begins.
• 4. Marketing: obtain a written copyright assignment from the illustrator and file the copyright registration this month.

References

Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2d Cir. 1976).

Defend Trade Secrets Act of 2016, Pub. L. No. 114-153, 130 Stat. 376 (2016).

Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019).

Lanham Act, 15 U.S.C. § 1051 et seq. (1946).

Oswald, L. J. (2011). The law of marketing (2nd ed.). South-Western Cengage Learning.

Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995).

Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992).

Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000).