Saturday, October 06, 2018

Frito-Lay prevails in crispbread slices trademark dispute

In Real Foods v. Frito-Lay, appellant Real Foods lost, cross-appellant Frito-Lay won, although not
for the reasons argued by Frito-Lay.

The general issue:

Appellant Real Foods Pty Ltd. (“Real Foods”) [represented by Norris, McLaughlin & Marcus]
sought registration of two marks: “CORN THINS,” for “crispbread
slices predominantly of corn, namely popped corn
cakes”; and “RICE THINS,” for “crispbread slices primarily
made of rice, namely rice cakes.” J.A. 279 (emphasis
omitted). Cross-Appellant Frito-Lay North America, Inc.
(“Frito-Lay”) opposed the registrations, arguing that the
proposed marks should be refused as either generic or
descriptive without having acquired distinctiveness.

Frito-Lay won its cross-appeal, but not for the reasons it argued:

Specifically, Frito-Lay contends the TTAB erred by
finding “‘thins’ is not a generic term” “based solely on the
fact that it is used within some third-party brand names”
because “‘thins’ is commonly used as a generic term for
snack food products, including crackers and crispbread
slices.” Id. at 22. We agree that the TTAB erred, but not
for the reasons asserted by Frito-Lay.

“[A] term can be generic for a genus of goods or services
if the relevant public understands the term to refer
to a key aspect of that genus.” Royal Crown, 892 F.3d at
1367 (ellipsis, internal quotation marks, and citation
omitted). Genericness involves a “two-step inquiry” that
asks: (1) “what is the genus of goods or services at issue,”
and (2) “is the term sought to be registered or retained on
the register understood by the relevant public primarily
to refer to that genus of goods or services?” Princeton
Vanguard, 786 F.3d at 965 (internal quotation marks and
citation omitted); see id. at 968 (explaining that the TTAB
should consider “the record evidence of the public’s understanding
of the mark as a whole”). “The authority is
legion that the question of registrability of an applicant’s
mark must be decided on the basis of the identification of
goods set forth in the application[,] regardless of what the
record may reveal as to the particular nature of an applicant’s
goods . . . .” In re Cordua, 823 F.3d at 602 (internal
quotation marks and citation omitted).

The TTAB improperly narrowed the genus of the
goods at issue.


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