California Intellectual Property Blog


Elon Musk Has Landed In a Trademark Dispute Over Snack Foods

The Boring Company snack food trademark

Just days after the SpaceX Inspiration4 mission returned to Earth, another Elon Musk corporate venture found itself in a trademark dispute. The Boring Company (TBC) — an infrastructure firm founded by Musk — filed a trademark opposition against a similarly named snack food company. The case involves several aspects of trademark law, so it will be interesting to see how it plays out.

The Boring Company Versus The Boring Company

Elon Musk’s The Boring Company has quickly become a pioneer in the area of infrastructure. By September 2021, the firm had already constructed two loop travel tunnels in Las Vegas and had several others in the planning stage. All signs point toward a profitable future for TBC, but a potential hurdle popped up near the end of 2020 in the form of a snack food company.

The Boring Company LLC — a separate corporation from the one founded by Musk — filed a trademark application on November 12, 2020 for “The Boring Snack Company.” As the name implies, the business revolves around a variety of snack foods.

This raises questions related to trademark law. A likelihood of confusion can often only exist among similar products or services. Delta Airlines and Delta Faucets, for instance, do not create confusion since their products are so dissimilar. This would seem to be the case with an infrastructure company and snack food company as well, but the matter at hand is more complex.

Can Infrastructure and Snack Foods Be Confused?

In the filed opposition notice, Musk’s The Boring Company claims that registration of “The Boring Snack Company” would create confusion among consumers. They also posit that the company filing for registration has not used the trademark in commerce — even though they claim a date of first use just two days before the application’s filing.

Whether or not commercial use existed is its own issue, but the big question is how a consumer could confuse a snack company with an infrastructure company. The opposition notice actually goes into detail regarding how this could happen. Their biggest point is that the trade name of the firm filing for protection is the exact same as Musk’s company.

What’s In A Name?

Of course, this is not an uncommon occurrence. TBC points out another important issue, though:

“The goods identified in the Subject Application are related to the goods offered or intended to be offered by The Boring Company… The Boring Company has enjoyed enormous success selling everything from hats to “not-a-flamethrowers.” Applicant’s foodstuffs offered under a virtually identical trademark are thus likely to be perceived as promotional or novelty items.”

Nowhere in the opposition notice does TBC The Boring Company claim that trademark dilution would occur if a registration is granted. This is often what we see when a company selling an unrelated product seeks registration of a name used by a famous brand. Instead, the opposition claims TBC might intend to offer similar products — and even if they don’t, consumers may think snack foods are a novelty from the company.

That’s what makes this case such an interesting one. Musk’s The Boring Company has certainly released products far removed from their infrastructural focus. Does this simple fact, however, mean they have widespread protection regardless of industry? Particularly considering the fact that they haven’t claimed dilution or protection based on a famous trademark?

These are just a few of the issues the Trademark Trial and Appeal Board (TTAB) will need to consider.

What Happens Next?

The next step in this trademark dispute will depend heavily on the response of The Boring Company snack establishment. While their website features no products to support their claim of commercial use, they still have until October 31, 2021 to file an answer with the TTAB. Failure to do so would likely result in a win for Musk’s The Boring Company.

Even without potential extensions, though, this case could extend into April 2023. This would be a long fight that Elon Musk certainly has the capital for, but the big question is whether The Boring Company snack enterprise could remain in this fight.


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