Legal-Ease: Perfect tender, when a Pepsi is a Coke

Lee R. Schroeder is an Ohio licensed attorney with Schroeder Law LLC in Ottawa. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at or at (419) 523-5523. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.

In the legal world, the use of a brand name sometimes can include non-brand name substitutes.

In 1921, New York’s top court clarified a law that has been adopted nationwide regarding a brand name being used to describe an entire line of products. In the case, the court ruled that some contracts and agreements should be interpreted practically and not always necessarily literally.

Summer holiday weekends almost always include food and drinks, including soft drinks. If we were celebrating in many parts of the country and wanted a soft drink, regardless of specific type, we would ask for a Coke. For those people, the brand name “Coke” includes all soft drinks, even if they are Mountain Dew, Dr Pepper or Pepsi.

Similarly, I am usually indifferent between Puffs facial tissues and Kleenex facial tissues. Nonetheless, I usually call them all Kleenexes. Likewise, when I was National Vice President of the FFA, I quickly learned that farmers in large parts of the United States tend to call all of the lawnmower-like weed chopping equipment attached to tractors “bush hogs,” which is the name of only one manufacturer of the several who make that type of equipment.

Read more about brand names in Lee’s article in the Lima News here: Legal-Ease: Perfect tender, when a Pepsi is a Coke

Source:, “Legal-Ease: Perfect tender, when a Pepsi is a Coke,” by Lee R. Schroeder, July 2, 2016

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