The US Trademark Trial and Appeal Board (TTAB) has again sided with Frito-Lay in its seven-year legal battle against Princeton Vanguard (PV), citing consumers primarily view pretzel chips as a type of snack and not a designation of source.
2004: PV launched Pretzel Crisps, a line of chip-pretzel-cracker hybrids.
2006: PV first registered for the mark ‘Pretzel Crisps’ on the USPTO Supplemental Registration and later filed an application to register it on the Principal Register.
2010: Frito-Lay North America filed a petition to cancel both PV’s Supplemental Registration and outstanding application before the TTAB, arguing the phrase ‘pretzel crisps’ was generic or, at the very least, a highly-descriptive and unprotectable name for the pretzel cracker products.
2014: TTAB ruled ‘pretzel crisps’ was generic on the grounds of ‘genericness’ – that is, the term ‘pretzel’ is generic for pretzel snacks and the term ‘crisps’ is generic for cracker.
2015: PV appealed and the Federal Circuit vacated the ruling on the grounds TTAB took “short cuts” and had merely decided that each word was a generic term individually, whereas it should consider the mark “as a whole”.
Earlier this month, TTAB noted that Snyder’s-Lance – which acquired PV in 2012 – may have built up some “de factor secondary meaning” by being the first to use the name ‘Pretzel Crisps’, however, that does not mean the term can be protected by trademark law.
The three-judge panel wrote that being a dominant force in the marketplace had not changed consumers viewing ‘pretzel crisps’ as a common descriptive name of a category of goods.
It also said it had carefully followed the Federal Circuit’s directions and had considered “whether joining the individual words into a single term lends additional meaning to the mark as a whole” before deciding against it.
The panel said combining the individual terms did not add meaning to ‘Pretzel Crisps’ in relation to ‘pretzel crackers.’
Battle to continue
Snyder’s-Lance counsel David Bernstein said the company was disappointed with the decision and “fully intends” to appeal it.
PepsiCo had not responded to our request for comment by the time this article went to print.
According to IRI data for the 52 weeks ending June 11, 2017, Snyder’s-Lance notched up $4.54bn in pretzel sales, while Frito-Lay recorded $1.67bn in pretzel sales.
Snyder’s-Lance commands 38% of the US pretzel market share, followed by Private Label (17%) and then Frito-Lay with 13%.
The case is Frito-Lay North America Inc. v. Princeton Vanguard LLC, opposition number 91195552 and cancellation number 92053001, before the Trademark Trial and Appeal Board.