August 5, 2021

Volume XI, Number 217

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PRETZEL CRISPS Found to Be Generic… Again

In a decision that might be the final ruling in a long saga over the rights to use the term PRETZEL CRISPS, the United States District Court for the Western District of North Carolina found the term PRETZEL CRISPS generic for pretzel crackers. Princeton Vanguard registered the mark PRETZEL CRISPS on the Supplemental Register, which is reserved for descriptive marks, and later sought registration on the Principal Register and has taken the position in this decade-old battle that the mark has become source identifying and recognizable by consumers as a trademark.

A Source Identifying Trademark

Frito-Lay North America challenged the mark through the Trademark Trial and Appeal Board (“Board”) and the matter was later appealed through the U.S. court system with rulings from both the Federal Circuit and Fourth Circuit Courts of Appeals.

In this latest ruling, the Court upheld a prior decision by the Board ordering cancellation of the PRETZEL CRISPS mark as generic for the goods. While recognizing the success of the brand due to marketing and enforcement efforts, the Court also found that such efforts could not allow a party to monopolize a common name. Frito-Lay argued that combining generic terms “pretzel” and “crisps” did not create any additional meaning beyond the common definitions.

Brand Selection and Choosing Trademarks

In agreeing with Frito-Lay, the Court observed that the combined term “yields no additional meaning to consumers capable of distinguishing the goods and, independently, usage by competitors, media references and consumer surveys (as well as some use by Plaintiffs) reflects that, on balance, consumers primarily perceive ‘pretzel crisps’ to be a common/generic name.” Snyder’s Lance, Inc., and Princeton Vanguard, LLC v. Frito-Lay North America, Inc., 3:17-CV-00652-KDB-DSC (W.D.N.C. June 7, 2021).

©2021 Norris McLaughlin P.A., All Rights ReservedNational Law Review, Volume XI, Number 169
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About this Author

Danielle M. DeFilippis Intellectual Property Attorney Norris McLaughlin New York, NY
Member

Danielle M. DeFilippis, Co-Chair of the firm’s Intellectual Property Law Practice Group, focuses her practice on intellectual property matters and litigation. She appears on behalf of individual and corporate clients in all phases of litigation from commencement through trial.  Danielle regularly serves as lead counsel in cases before federal and state courts, the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office, and alternative resolution forums.

Danielle has represented clients in a variety of industries, most notably, food and beverage, liquor, jewelry,...

917-369-8841
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