According to this article, Wal-Mart is seeking to register the mark EDLP in connection with online and retail department store services in Class 35, and a lot of people are not happy about it. SuperValu, Inc. has already opposed the application, as has Wakefern Food Corp. and Associate Wholesale Grocers, Inc. Likewise, the following have collectively obtained several extensions of time to oppose Wal-Mart’s application: Lowe’s Home Centers, Inc., Publix Asset Management Company, Giant Food Stores, LLC
Haggen, Inc., Wegmans Food Markets, Inc., Publix Super Markets, Inc., Wakefern Food Corp., Mr. Wendell P.Russell Jr., Food Lion, LLC, BASHAS’ INC., Lowe’s HIW, Inc., Schnuck Markets, Inc., Meijer, Inc., National Association of Convenience Stores, Unified Western Grocers, Inc., Associated Grocers, Inc. and HEB GROCERY COMPANY, LP.
The opposers claim that EDLP is a commonly understood and used term in the retail industry for “every day low prices,” another trademark of Wal-Mart. SuperValu includes as exhibits to its opposition numerous dictionary definitions for “EDLP” as well as industry articles that use “EDLP” as an acronym for “every day low prices.”
However, what I also find interesting relates to my earlier post here which discusses the viability of fraud claims at the USPTO. In its opposition, SuperValu claims that since Wal-Mart was aware of the commonly understood meaning of “EDLP,” it committed fraud when it filed its application and declared, that “to the best of Applicant’s belief no other person, firm, corporation or association has the right to use said mark in commerce.”
Though this does not relate to fraud concerning the goods which a Statement of Use was filed, it does relate to the concept of fraud on the USPTO. It also relates to some points made in the INTA Bulletin on which my earlier post was based and it addresses some of the comments posted by Ron Coleman to my post.
I am curious to see how this turns out.
On a tanget, a review of the file wrapper suggests that the Examining Attorney did not make any inquiries into the meaning of the mark. This surprises me in light of the marks on which I have worked for which the Examining Attorney has inquired whether the mark has any meaning in a foreign language or in the relevant trade or industry. The Examining Attorney, in his Office Action, did not even ask whether the mark stood for something. It seems that this was a pretty big oversight on his part.
As I said above, I am interested to see how the fraud claim is handled by the TTAB. I hope it makes it through a decision.