For a second time, the Trademark Trial and Appeal Board (TTAB) has granted Frito-Lay North America’s petition for cancellation of Snyder's-Lance Inc.’s application to trademark “Pretzel Crisps,” finding the term is generic. Frito-Lay N. Am.v. Princeton-Vanguard, LLC, No. 91195552 (TTAB, entered September 6, 2017). TTAB initially found "pretzel crisp" to be generic following Frito-Lay's opposition to the application, but the Court of Appeals for the Federal Circuit vacated and remanded the decision, holding that TTAB had used an incorrect legal standard for its opinion. Additional details on the decision appear in Issue 566 of this Update.
On remand, TTAB first considered the genericness of the individual terms then analyzed the whole term, again finding that “the primary significance of the term in the minds of the consuming public is to identify a product rather than to identify a single producer of that product, and that indeed the 'Pretzel Crisps' product may derive from more than one source.” In addition, TTAB ruled that Snyder's-Lance failed to establish that the mark had acquired distinctiveness.