New York Trademark Attorney Blog
The Court of Appeals for the Federal Circuit (Federal Circuit) vacated and remanded the matter of Princeton Vanguard, LLC vs. Frito-Lay North America, Inc. No. 2014-1517 (Fed. Cir. May 15, 2015) back to the Trademark Trial and Appeal Board. See our blog post entitled The TTAB Agrees With Frito Lay, Pretzel Crisps Are A Generic Term for a summary of the proceedings at the Trademark Trial and Appeal Board (the “Board”). The Board in a precedential decision cancelled the Supplemental Registration PRETZEL CRISPS finding that the term Pretzel Crisps was generic for pretzel crackers. In vacating and remanding the Board’s refusal to register the mark PRETZEL CRISP, the Federal Circuit is demanding a new decision based on the correct legal standard and application of the evidence in the record.
The Federal Circuit found that the Board applied the incorrect standard for determining genericness. The Board in granting the Petition for Cancellation held the term “Pretzel Crisps” was a compound term not a phrase and analyzed the terms individually. The Board further held that the word “pretzel” was generic for pretzel snacks and the term “crisps” was generic for crackers. The Board stated that it reviewed the entire record, including the surveys, but determined that “controlling” weight should be given to the dictionary definitions, evidence of use by the public, including use by the media and by third-parties in the food industry, and evidence of use by defendant itself.
The Board concluded that its determination would have been the same if it had analyzed PRETZEL CRISPS as a phrase instead of a compound term. The Board explained that the words used together create a meaning understood by the relevant consumer base to mean the generic for pretzel crackers. The Federal Circuit agreed with Princeton Vanguard’s argument that the Board failed to consider all the evidence in the record when it did not give weight to the public’s understanding of the mark in its entirety.