Trademarks with a Spicy Twist

Understanding Brand Protection While Downing Tabasco®

They say law can be dry, but sometimes you just need a shot (or several) of Tabasco® to spice things up. In this entertaining but borderline nuts video I teach how trademarks work, getting sweatier and less articulate as my mouth pain rises. Between shots of Tabasco®, I cover the fundamentals of trademarks, how they differ from patents and copyrights, and why building a brand identity matters. Below, I distill the key takeaways into a coherent (but painfully spicy) narrative.

AI Use Disclosure: In accordance with this site’s AI disclosure policy, this article started with a video that was entirely me. I fed the transcript into an AI and asked it to convert my presentation to prose. I then edited, corrected, and expanded on it. So … my ideas, lots of (but not 100%) my writing. This is, in essence, a transcript plus extras.

1. Why a Lawyer Would Drink Tabasco® on Camera

A Comical Approach to Education
It’s not every day you see an IP (intellectual property) lawyer willingly down shot after shot of Tabasco®. Let’s just call it a comedic device to keep your attention. Or the sign of a disturbed individual. Or both. The big picture: If a burning tongue is the price of you knowing your trademark rights, or equally important, knowing not to infringe somebody else’s rights, that’s worth it to me. Don’t worry, you won’t be charged by the hour for watching. If you want legal advice, you’ll need to look elsewhere (and pay by the hour), as this is not legal advice. If you don’t have a lawyer, you can always hit me up for advice or consulting — but this article is neither.

My First Amendment protected and legal use of a trademark in an educational context: There is just no chance that a consumer will be confused and think that Tabasco® made this video. They had nothing to do with it, I just like how it tastes (although as it turns out, not so much when guzzled instead of used to flavor things) and wanted to do a video with it. However, if I put this label on a sauce I was selling, I’d be deep into trademark infringement. Notice the little R in a circle right next to the “O” in Tabasco®? That’s how you know it is a registered mark. It isn’t legal to put that R next to a non-registered mark. That’s with “TM” is for. Longest picture caption I’ve ever written, apologies for that.

2. What Is a Trademark, Anyway?

2.1 Source Identifier

A trademark is anything—word, phrase, logo, symbol, design, even a sound or color in some jurisdictions—that helps consumers identify the origin of goods or services. When you see the Tabasco® brand name (with the ® symbol), it tells you it’s a genuine product from the McIlhenny Company, not some random “hot sauce knockoff.” As an aside, patent examiners will often require you to use the ® symbol any time you use a registered mark in a patent application (which is why you should use “Hook and Loop Fastener” instead of “Velcro®”), making clear that people other than the registered owner of the mark can (and really should) use the ® symbol when using the trademark. Update: Innovation Cafe® is now a registered trademark of Gary Shuster (me!). Talking the talk, walking the walk, I suppose.

2.2 Consumer Protection Function

Unlike patents, which reward invention, and copyrights, which protect creative works, trademarks conceptually exist to prevent consumer confusion. By registering a brand’s unique identifier, the public knows that “Tabasco® sauce” or that distinctive diamond-shaped label signals the real deal, from the real source. In fact, after downing all of that hot sauce (see, no ® required when you don’t say Tabasco®), I can attest that it had the high quality and moderate kick I associate with the Tabasco® brand.

In Short: When you see the Nike® “swoosh” or McDonalds® golden arches, you instantly know who produced it. That’s the rationale behind trademarks. Side note: I’m the proud owner of a trademark ~~pending on a trademark~~ for Innovation Cafe®. They’re not that tough or expensive to apply for yourself (although as a lawyer, it might be easy for me and not others).

3. The Deets on Trademarks

3.1 Distinctiveness

Trademarks must be distinctive—not just describing the product. If you’re selling extra-large mushrooms, you can’t register “Really Big Mushrooms” as a trademark because that’s purely descriptive. But something like “Mount Everest Mushrooms” might work, as it’s suggestive or arbitrary in relation to the product.

Note: I used to use actual images under license from human photographers and paid stock photography sites. Unfortunately, due to lawyers sending letters demanding way more than they could ever get in court for images that aren’t even registered with the copyright office (eliminating the very statutory damages they often threaten), using real images is too risky. What if the person who uploaded to the stock photography site didn’t own all rights to the image I just paid for? What if I paid for it but my hard drive crashed and my copy of the license disappeared? For me, Matthew Higbee ended my good-faith support of photographers via paid stock photography sites by forcing me to turn to AI. I miss supporting creatives, but until Congress fixes it, I’m sticking with AI. No, I’m not going to write this every time, but I thought I’d explain it here: the first time I removed a properly licensed photograph taken by a real human in favor of AI, strictly to avoid copyright trolls.

3.2 Use of ® Symbol

In the U.S., you can only use the ® symbol after you’ve successfully registered your trademark with the United States Patent and Trademark Office (USPTO). If you haven’t registered yet, you can use ™ (trademark) or ℠ (service mark) to indicate you’re claiming ownership of the mark, but it’s not officially registered. As with everything, though, if you use it to deceive people, that would be fraudulent. Don’t do that. Don’t put ™ on something that you don’t have any legitimate claim to.

3.3 Longevity: Potentially Forever

Trademarks can last forever—unlike patents, which typically expire after 20 years, or copyrights, which often expire decades after the author’s death. As long as you keep using the mark in commerce and renew it periodically (and the mark does not become generic), it remains yours. You do need to police your mark.

4. Trademark vs. Other IP Forms

Patents
- Protect inventions: new, useful, and non-obvious processes, machines, or compositions of matter.
- Limited lifespan (20 years from filing).
- Encourages technical disclosures to advance the arts and sciences.
Copyrights
- Protect creative works like books, music, software code, film.
- Arises automatically upon creation in a tangible form and lasts (in the U.S.) typically 70 years post author’s death.
- Focused on expression, not brand identity or how someone could confuse the public.
Trademarks
- Protect brand indicators that tell consumers where a product or service comes from.
- Potentially infinite lifespan with proper use.
- Primary purpose: reduce confusion in the marketplace and assure authenticity of goods or services.

5. Protecting Your Brand: Best Practices

Do a Thorough Search
- Before launching your brand, check if someone else already uses a similar mark in your category. This helps avoid costly infringement suits or rebranding fiascos. You can search the USPTO here.
Register the Mark
- If you’re in the U.S., file with the USPTO. Elsewhere, you typically register with national or regional trademark offices. Worldwide brand owners often use systems like the Madrid Protocol to streamline international filings. If you’re looking for worldwide protection, though, hire a trademark lawyer. My friend from high school is a great choice. I also refer people here, another great choice.
Policing Infringement
- Keep an eye out for imitators. If you let them slide, your mark might lose distinctiveness.
- Many large brands engage in “brand protection” tasks, scouring markets for knockoffs. There are companies that monitor for infringement. If your trademark has high value, hiring one of those companies might be a good investment.
Maintain Usage
- In most jurisdictions, you must use the mark commercially or risk cancellation for non-use. If “Tabasco®” vanished from shelves for years, the registration might be challenged.

6. Key Takeaways

Trademarks Are About Consumer Clarity
- A brand name, logo, or slogan quickly cues people to the product’s origin. “Tabasco®” is recognized as a one-of-a-kind sauce from the people who originally formulated it (as an aside, if you’re ever in New Orleans, take the tour of the plant where it is made).
They Differ from Patents and Copyrights
- Patents protect inventions; copyrights protect creative expressions; trademarks protect brand identifiers.
- Each IP type serves a distinct purpose but can complement the others. For instance, a stylized logo might also have copyright aspects, while a brand’s technology might be patented.
They Can Last Indefinitely
- As long as you remain active in the market and renew according to your country’s rules, your brand can exist for generations—like Coca-Cola® or Tabasco®.
File Properly and Enforce
- Don’t just assume your brand is safe. Register it, use it consistently, and watch out for imitators and infringers. Even if you’re not chugging hot sauce on camera, you want to preserve your brand’s distinctiveness.

7. Conclusion: A Lesson Served Extra Spicy

Watching me guzzle Tabasco® may be a bizarre spectacle (my family sure thought that), but it helps me get your attention and teach a core truth: behind every well-known brand name is a trademark that ensures consumers get the product they expect—whether that’s mouth-searing sauce or a coffee shop. If you’re building your own brand, keep your trademark strategy front and center.