March 2, 2026
Going Viral Doesn’t Mean You Own It. Inside The ‘TENDERNISM’ Trademark War
The phrase has become the center of a multiparty trademark dispute involving Walter Johnson (aka 'Unc'), Diamond Smokehouse Enterprises Inc., and attorney Kenneth Harris.
By Caleb L. Green, Esq.
Few viral food trends have captured public imagination the way “TENDERNISM” has. The term exploded across TikTok and Instagram as viewers watched an older gentleman — known affectionately as “Unc” or “Mr. Tendernism” — dramatically test smoked meats to see whether they were truly fall-off-the-bone tender.
But now, the phrase at the heart of this viral phenomenon has become the center of a multiparty trademark dispute involving Walter Johnson (aka “Unc”), Diamond Smokehouse Enterprises Inc., and attorney Kenneth Harris. This is a story about virality, intellectual property, and a cautionary tale for creators and businesses who wait too long to protect what they build.
Who is ‘Unc’? Meet Walter ‘Mr. Tendernism’ Johnson
According to multiple reports, the man behind the phrase is Walter Johnson, a former staff member at Destination Smokehouse, a California-based barbecue restaurant whose videos recently went viral. Johnson is widely credited with coining the term “TENDERNISM,” describing meat that is so tender “you don’t need no teeth.”
Johnson — frequently referred to as “Unc” — became a viral sensation for his charismatic demonstrations of tenderness tests, which garnered millions of views. His popularity grew even further after attention from large creators such as @Jordan_the_stallion8 and food critic Keith Lee, who traveled to the restaurant specifically to meet the man behind the movement.
Diamond Smokehouse Enterprises Inc.: The Business Behind the Brand
Diamond Smokehouse Enterprises Inc., located in Murrieta, California, is associated with the Destination Smokehouse brand — where Johnson worked and where the Tendernism phenomenon took root. The company is now asserting that it — not any outside party — is the rightful owner of the TENDERNISM mark because it has been using the phrase commercially in connection with its restaurant operations and branded merchandise.
The Trademark Filings: Two Sides, Four Applications
However, when it came to filing a trademark application with the United state Trademark Office, a North Carolina-based attorney named Kenneth Harris, beat Diamond Smokehouse and Johnson to the punch. On Nov. 21, 2025, attorney Kenneth Harris filed two trademark applications for TENDERNISM, both on an Intent-to-Use (ITU) basis:
• Application Serial No. 99510317 (ITU) in class 43 for restaurant services.
• Application Serial No. 99498965 (ITU) in class 25 for clothing.
Notably, Mr. Harris has not submitted any proof of use of the TENDERNISM trademark, meaning he does not yet have any legal use in commerce associated with the mark. Some public reports suggest that Harris may have reached out to “Unc” to offer the trademark filings to him or leverage them for business purposes. While this claim remains unverified, it has circulated widely online.
Diamond Smokehouse Enterprises Inc. filed two trademark applications on Dec. 5, 2026 and Jan. 8, 2026, both based on actual use in commerce, claiming first use dating back to April 17, 2024:
• Application Serial No. 99584462 (UseBased) in class 25 for apparel.
• Application Serial No. 99533763 (UseBased) in classes 35 and 43 for restaurant-related services.
These trademark filings assert that the company — and by extension “Unc” — began commercially using the TENDERNISM mark well before Harris’s ITU filings.
Intent-to-Use vs. Use-in-Commerce: Why the Difference Matters
To understand who holds the trademark rights to TENDERNISM and where this dispute is heading, it’s essential to break down the legal meaning of the trademark filings.
Harris’s Intent-to-Use (ITU) Applications
An ITU application allows a person to reserve rights in a mark before they begin using it in commerce. However, ITU filings do not establish trademark rights until the applicant uses the mark in commerce. Usually, the ITU trademark applicant demonstrates use of the mark by filing a “Statement of Use” accompanied by evidence (photos, packaging, sales receipts, etc.). Thus, Harris currently has no trademark rights in TENDERNISM, because rights flow from use, not filing an ITU application alone.
Diamond Smokehouse’s UseBased Applications
A “use in commerce” application is filed only after the applicant is already using the mark commercially. Diamond Smokehouse claims use since April 17, 2024, which, if true, predates Harris’s ITU application filings. This is important because trademark law is built on a first-come, first-served principle. The first person or entity to use the mark gets the right to use that mark. In the case of the TENDERNISM mark, Diamond Smokehouse appears to be the trademark owner.
What Happens Next? — USPTO Procedure Complicates Things
Even though Diamond Smokehouse has submitted evidence of earlier use of the TENDERNISM mark, Harris’s ITU applications will be examined first because they were filed first. But critically, Harris’s applications will not achieve registration unless he provides evidence of actual use of the mark in commerce. Even if Harris presents sufficient evidence of use, Diamond Smokehouse will almost certainly oppose Harris’s applications if they reach the publication stage.
In an opposition, Diamond Smokehouse would likely argue that it has senior rights based on earlier commercial use.
The Public Outcry: Accusations of “Stealing“ a Viral Phrase
While Harris and Diamond Smokehouse jockey for trademark registration with the USPTO, both have faced criticism online from people who believe “Unc” should own the mark — or who assume that any filing is an attempt to “steal” a viral term. And while Walter “Unc” Johnson undeniably coined and popularized the term “TENDERNISM,” it is important to remember a foundational rule of trademark law:
Creating or coining a word does not make someone the trademark owner.
Trademark rights arise only through “use in commerce” to identify the source of goods or services.
This is often counterintuitive to the public. In trademark law, the legal “owner” is the party who uses the mark commercially in connection with goods or services, not the individual who first said it, created it, or made it go viral.
Even viral personalities — especially employees — do not automatically own rights in the phrases they make famous.
In this case, even though Unc coined the word, the relevant legal question is who used TENDERNISM in commerce first, and the evidence currently indicates that Diamond Smokehouse began doing so long before any filings by Harris. This distinction is crucial not only here, but for creators and businesses everywhere.
Conclusion
While the internet may believe that “Unc” should automatically own the trademark because he coined the term, unfortunately, trademark law simply does not work that way.
Trademark rights belong to the party who uses the mark in commerce — not the one who invents it, popularizes it, or appears in viral videos using it. In many cases, that means the employer, not the employee, acquires the rights when a phrase becomes tied to the company’s goods or services.
At the same time, this dispute highlights a deeper truth: both creators and businesses must be proactive.
Whether you’re a restaurant, a content creator, or a brand trying to harness viral momentum, if it’s worth going viral, it’s worth protecting early. Had Diamond Smokehouse filed immediately when TENDERNISM began gaining attention, the current conflict might never have arisen.
As this matter proceeds, all eyes will be on whether Harris can prove use, and whether Diamond Smokehouse’s prior use rights prevail. But whatever the outcome, the broader message remains: Viral fame does not create trademark rights.
Use in commerce—and timely filing—does.
Caleb L. Green is a partner at Howard & Howard Attorneys PLLC and a law professor at the William S. Boyd School of Law. He practices as an intellectual property attorney and is deeply focused on trademark law, brand protection, and portfolio management. He represents businesses, creatives, and emerging brands in securing, enforcing, and maximizing the value of their trademarks across the United States and abroad. With extensive experience in trademark prosecution, clearance, enforcement, TTAB proceedings, and brand strategy, Caleb guides clients through every stage of developing, protecting, and defending their brand identities.
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