Using the “TM” Symbol to Designate Your Trademarks: Waffle House Edition

While at a meeting earlier today, I came across an item on a bookshelf that took me back to my college days at the University of Richmond – a Waffle House menu. For the uninitiated, the Waffle House is a staple of the Southern experience and a gathering place for the masses. For more background on the Waffle House, I will direct you here, for a a piece by Besha Rodell of Creative Loafing Atlanta, who recently recounted a 22 hour visit to the Waffle House.

I had not been to Waffle House since undergrad and so I looked upon the menu with fond semi-remembrance. In looking at its ample contents, I was drawn to the frequent use of the phrase “America’s Best!” TM. As you can see in the first image, on the left, Waffle House proudly claims that it has America’s Best coffee. And Steak & Eggs. And Orange Juice. And hash browns (that last part is true).

The purpose of the TM symbol is to provide notice to consumers and others in the marketplace that a phrase, logo or other symbol functions as a trademark. It is not the same as the “®” symbol, which may only be used when a mark owner has registered their trademark with the United States Patent & Trademark Office.

While it appears that Waffle House used the TM symbol with the intention that it should act as a trademark, upon closer review it serves more of a pure advertising function. Examine the text at the bottom of the second picture. The notation at the bottom of the menu states that each of these “America’s Best!” products were so designated by “an influential member of the Waffle House family.” In that context, it appears that Waffle House intended for the TM symbol to act as an asterisk, a qualification. Further, consumers are conditioned to recognize claims such as “America’s Best!” as mere puffery. While harmless, it is likely that Waffle House’s use of the TM symbol on this expired menu is not preferred use of the TM symbol.