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Whole Foods just got called out for a pretty big exaggeration

A pedestrian walks past a Whole Foods Market in Cambridge, Mass., in 2007. (Bloomberg/JB REED)

Whole Foods Market says it's "America's Healthiest Grocery Store."

Now, the grocery chain is looking to update its slogan to reflect a loftier moniker: "World's Healthiest Grocery Store."

Unfortunately for the grocer's efforts, the U.S. Patent and Trademark Office recently rejected an application to register that slogan. Whole Foods will have six months to update and refile the case; it may choose not to do so, although that seems unlikely.

On top of that, Whole Foods' attempts to break into the global market has been slow. It launched its first international outlet 14 years ago and now has opened just 20 in two countries outside the United States.

The agency said it rejected the trademark because it makes a "laudatory" claim, or is based on exaggerated praise that can't be proven or has not been proved true. For instance, Papa John's slogan "Better Ingredients, Better Pizza" was initially struck down by a court in 2000 because it could not substantiate that it indeed had better ingredients than all of its competitors. 

Companies still try to trademark these sorts of affirmations anyway, said Jonathan Hyman, a partner at California-based intellectual property law firm Knobbe Martens Olson & Bear. "Companies attempt to register these kinds of marks all the time, though it's sometimes not successful."

That's because they can manage to argue that the superlative is a distinguishing mark of the company, rather than a factual statement, Hyman said. Papa John's continued to advertise their pizza pies with "Better Ingredients, Better Pizza" on the basis that their consumers already associated that with their company. Whole Foods used a similar argument when it managed to claim "America's Healthiest Grocery Store" in 2010, Mike Ortega, trademark consultant for brand agency Interbrand, wrote in an Interbrand publication.

They could also use facts to back up their slogan. "Leading Brand" or "Trusted by Moms" are approved tag lines when a brand can quantitatively prove that those are indeed true.

But Whole Foods isn't really recognized as the world's healthiest grocery store. It functions only in the United States, Britain and Canada, which is hardly the entire globe. On top of that, few probably associate the phrase "World's Healthiest Grocery Store" with Whole Foods; it has never used the slogan.

"The trademark application could be a sign that Whole Foods could be planning to expand its locations beyond just three countries," Ortega wrote.

It does indicate that Whole Foods is still looking to continue to grow globally. Based in Austin, Whole Foods opened its first international outlet in Toronto in 2002 and expanded to Britain shortly thereafter.

The international push has not been as lucrative as executives hoped. That's in part because of efforts by cheaper options, such as Walmart, to expand their organic sections as well as the hold preexisting upscale grocers, such as Britain's Waitrose,  have on Whole Foods' potential clientele.

Whole Foods co-chief executive Walter Robb told the Wall Street Journal in 2014 that his company would open more than 80 new storefronts in Canada in 2015 and 2016. But the current tally is three: 2015 saw the opening of one new location in British Columbia; another is slated to open there this  fall as well as one in Alberta. That would bring its total store count in Canada to 13.

Other U.S. retailers have struggled to the north. Last year, Target closed all of its stores in Canada after two years of disappointing results. Walmart, although otherwise enjoying growth, is in a credit card feud in some Canadian locations.

In Britain, where Whole Foods operates nine storefronts, the grocer has seen improving sales, the Guardian reported. It has not expanded there since 2013.

Whole Foods applied for this trademark on June 27 and received an office action on July 16 informing it that its slogan was insufficient for copyright registration. The rejection is not final, and Whole Foods must reply to the agency's reasons for rejection by Jan. 16 to still be considered.

Whole Foods did not respond to requests for an interview.

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