28th September 2013

Pho heavens’ sake!

Image: Flickr - Nam Ngo

Image: Flickr - Nam Ngo

Pho* is a traditional Vietnamese soup comprising noodles, meat, herbs and broth.  In recent years, it has spread from its humble, local roots to become an on-trend food around the world. One notable exponent is the amusingly titled “Mo Pho” (a pun which, admittedly, assumes you’re not a fluent tiếng Việt speaker) - a small, independent restaurant in south-east London which has been selling a mouth-watering selection of phos for several years.

Mo Pho recently found itself on the receiving end of an unwelcome letter from Pho Holdings Limited, which runs 8 of it own Viet-themed restaurants around the country. The letter asserted the latter’s registered trade mark rights in the word PHO for, among other things, restaurant services.  There followed a predictable amount of misinformed media coverage, demonstrating in the main how journos still can’t tell a patent from a trade mark or even a copyright.  But the essence of the outrage has been that a big company has no business trying to monopolise the name of a national dish, certainly not as against a family restaurant who actually hail from that nation, and who are simple working their own culinary heritage.

For its part, Pho Holdings hastily backtracked and explained that “after much deliberation”, they had “decided to go against the legal advice we've received”.  Which begs the questions: exactly how much deliberation was needed before coming to that momentous decision? And: why wasn’t that deliberation deliberated before opening up with both barrels?

(As much as anything, Pho Holdings seemed to be trying to blame their advisors for the "heavy-handed" counsel they had received.  Which may be an accurate assessment of the situation, but ignores the fact that advisors only advise and don’t make the actual decisions. The press coverage has also joyfully adopted this tack - references to “bloody lawyers” being the only likely winners from this debacle seem to allow everyone else involved to conveniently paint themselves as innocent by-standers.

Don’t get us wrong, we know all lawyers ain’t saints, and we’re used to copping a load of grief as part of our day job.  But when decent-sized corporates suffer a total responsibility failure and try to get out of it by pointing the finger at their attorneys, it kind of smacks of misdirection.)

Anyway, back to the point: back in 2007, when Pho Holdings secured their UK trade mark registration for PHO, the eponymous soup was much less known in Britain than it is now.  So the word was probably viewed as a collection of 3 arbitrary letters, albeit with an exotic feel, which said nothing about the goods or services in question.  In other words, it fulfilled the requirements for registration.  Fast-forward to 2013 and pho is everywhere, which possibly means that PHO is no longer registrable since it is now recognised as simply being a descriptor of the soup sold by the restaurant.  Calling your pho restaurant “PHO” is a bit like calling your burger bar “BURGERS”.  Not great for brand recognition, and even worse for trade mark registration and enforcement.

Even Pho Holdings have admitted that they don’t - for which read “can’t” or maybe even “daren’t” - want to enforce their rights against other Vietnamese restaurants.  Which is effectively admitting the trade mark game is up.  But the registration remains on the books and it would take someone to spend the time and money to mount a formal challenge before it could be conclusively knocked out, something which Mo Pho don't want to have to do.

It’s an interesting snapshot of how brands can be fickle things, despite the best efforts of the brand owner.  Pho Holdings have invested a lot in a brand which is starting to slip from their grip.  They’re unlikely to want to contemplate a rebrand, but their brand rights are now much weakened and may in time evaporate completely.   (They still have their distinctive logo which is also registered as a trade mark, and that’s fair enough, but it’s not what they were throwing at Mo Pho). They've done all the right things from a legal point of view, but appear to have been tripped up by a want of discretion and a lack of commonsense.

If you want the takeaway points from all this, we’d suggest the following:

1)       Just because you can, doesn’t mean you should

2)       Always sleep on it before committing yourself

3)       Beef pho is much nicer than chicken.

 

* PHO is technically pronounced "fuh", or sometimes "fur", but never “foe”.  So Mo Pho isn’t quite as funny as it might seem, but a line of people waiting for noodle soup is conceivably a “pho queue”.  We’ll get our coats…


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