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Court: Everybody Gets 'La Michoanaca'

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By William Vogeler, Esq. on August 16, 2018 7:03 AM

In Mexico, "La Michoacana" refers to a Michoacan girl holding a specialty ice cream cone in advertisements.

But in Paleteria La Michoacana Inc. v. Productos Lacteos Tocumbo, a federal appeals court said the reference is so commonplace it cannot be claimed by one business over another in the United States. The decision settled a decades-long issue in an international trademark dispute.

Unlike the "paleta" ice cream, however, it was a bittersweet decision. The good news is that you don't have to speak Spanish to understand what happened.


The story started in the 1940s, when the owners of Productos Lacteos Tocumbo claim their ancestors started the first "paleteria" in the Mexican state. That would be "ice cream maker" to non-Spanish speakers.

Paleteria La Michoacana is another paleta company, started by two Mexican-American brothers with pushcarts in the 1990s. Today, the company sells its products at thousands of retail stores throughout the United States.

As the businesses expanded, using various advertisements with "La Michoacana," it got legal. They asked the federal courts to decide who, if anybody, owned the phrase and image.

After cross-motions for summary judgment and a thirteen-day trial, a judge said the U.S. company did not infringe because the phrase is commonplace. The DC Circuit Court of Appeals affirmed the ruling against the Mexico-based company on other grounds as well.

Yes and No

The appeals court said "La Michoacana" referred to paleta sales. "[I]n Mexico, the phrase is generally associated with paletas, much as, in the United States, a red, white, and blue striped pole denotes barbershop service rather than any one brand of barber."

On the other hand, the appeals court said Paleteria La Michoacana owned its trademarked image of "La Michoacana," and Productos Lacetos Tocumbo infringed on them. So both companies can use the "La Michoacana" phrase but not the same image.


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