What's in a name? Battle continues over use of Pretzel Crisps mark

by Eric Schroeder
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At issue is whether the term "Pretzel Crisps" is generic for pretzel crackers.

WASHINGTON — The battle over the use of the term “Pretzel Crisps” took another turn recently when the U.S. Court of Appeals for the Federal Circuit ruled that the Trademark Trial and Appeal Board applied the wrong legal standard when it refused to register the trademark “Pretzel Crisps” on the grounds that the trademark is generic for pretzel crackers.

Princeton Vanguard, L.L.C. (now a subsidiary of Snyder’s-Lance, Inc.) filed a U.S. trademark application seeking to register Pretzel Crisps for pretzels on the Supplemental Trademark Register in 2004, and in 2009 filed new applications to register Pretzel Crisps for pretzel crackers on the Principal Register.

But in 2010, Frito-Lay North America, Inc. filed a notice of opposition to the application, arguing that the term “Pretzel Crisps” is generic for pretzel crackers and is highly descriptive of a type of cracker product and has not acquired distinctiveness, and thus is not registerable.

In 2014, the T.T.A.B. sustained Frito-Lay’s opposition and granted petition for cancellation, finding that “pretzel crisps is a compound term, not a phrase.” Specifically, the T.T.A.B. found that the term “pretzel” in Pretzel Crisps is generic for pretzels and pretzel snacks, and the term “crisps” is generic for crackers.”

Princeton Vanguard appealed the ruling, arguing that the T.T.A.B. erred in its generic-ness analysis when it assessed the Pretzel Crisps mark as a compound term instead of a phrase.

In its May 15 ruling, the Court of Appeals for the Federal Court said it agreed with Princeton Vanguard’s assessment that the T.T.A.B. applied the incorrect legal standard when it failed to consider the relevant public’s understanding of the Pretzel Crisps mark in its entirety.

“There is no evidence that the board conducted the necessary step of comparing its findings with respect to the individual words to the record evidence demonstrating the public’s understanding of the combined term: Pretzel Crisps,” the Court said. “By failing to do so, the board took the type of short-cut analysis we have said is prohibited and ignored evidence that might compel a contrary conclusion. …We conclude, therefore, that the board applied the incorrect legal standard for its generic-ness determination.”

A spokesperson for Snyder’s-Lance said the company is “happy with the decision.” Frito-Lay did not respond to a request for comment.

 The case has been moved back to the T.T.A.B. to consider based on the correct legal standard and evidence.
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