Princeton Vanguard (“PV”) obtained a registration on the Supplemental Register in 2005 for the mark PRETZEL CRISPS for the goods “pretzel crackers,” with a disclaimer of exclusive rights to use the term “pretzel” apart from the mark as shown. PV later filed a new application to register PRETZEL CRISPS for pretzel crackers on the Principal Register, claiming the mark had acquired distinctiveness.
In an opposition by Frito-Lay North America, the TTAB evaluated whether the term PRETZEL CRISPS is a generic term for pretzel crackers. The Board found that the combined term PRETZEL CRISPS in relation to pretzel crackers does not have any additional meaning other than the meanings of the components by themselves, and thus, whether the term is generic should be analyzed by considering the meanings and uses of “pretzel” and “crisps.” Frito-Lay submitted significant evidence that “crisps” is a generic term for crackers, including use by competitors and other third parties. PV even admitted that some crackers are crisp. In addition, on the packaging for its PRETZEL CRISP products, PV used the term “crisps” to provide nutrition facts for a serving size of a stated number of “crisps.”
Both parties submitted survey evidence which, not surprisingly, arrived at different conclusions. The Board criticized Frito-Lay’s survey as being unreliable, but did not give much weight to either survey in its analysis. In holding the term “crisps” was generic for pretzel crackers. the Board relied on dictionary definitions and evidence showing marketplace use of the term to refer to crackers.
Frito-Lay North America, Inc. v. Princeton Vanguard, LLC, Opposition No. 91195552 (TTAB February 28, 2014) [precedential].