from the getting-twisted dept
It’s quite incredible how often the unfortunate growth of ownership culture in America produces silly trademark disputes over terms that obviously shouldn’t be valid trademarks. While examples of this are legion, let’s get right into what has become a decade-plus long dispute over “pretzel crisps”. Snyder’s, acquired by Princeton Vanguard, has long made a “pretzel crisp” product. In 2004, the USPTO registered the company’s “pretzel crisp” mark, but as a supplemental to an earlier registration, deeming it “descriptive”. If you want to argue that the term “pretzel crisp” is not descriptive, well, don’t because you’re wrong. Even Princeton Vanguard didn’t argue differently until 2009, when it attempted to argue that the term had acquired distinctiveness in the public, associated with the company’s brand and product. The USPTO remained unconvinced when Frito-Lay opposed the registration as it had its own similar product, with that opposition going so far as to actually seek to have any registration for the term canceled as generic.
From there, the companies found themselves in lawsuit-land.
(Note to the reader: this is normally where I would include a useful pull-quote from the bakeryandsnacks.com link above about how two federal appeals courts ruled against Snyder’s, affirming the mark as generic, but unfortunately that website seems to think that disallowing any copy/paste of its text is somehow the same as enforcing copyright. When attempting to do so, you get a copyright warning. Now, I could simply type out the quote and use the text anyway, given that such use would fall squarely in fair use territory, but instead I’ll use this space to give a big “fuck you!” to bakeryandsnacks.com. You’re welcome for some traffic, you restrictive ass-bags!)
Anyhoo, while two losses in federal court really should have been the end of this, yet another civil action was brought by Princeton Vanguard in the US District Court for the Western District of North Carolina. Both parties asked for summary judgement as to whether the term “pretzel crisp” can be registered as a trademark or if it’s generic. The court declined to grant summary judgement based on a procedural technicality. But the court did still rule on the overall question of the generic nature of the term.
Especially significant here, the law forbids trademarking generic terms, even when a putative mark holder engages in successful efforts to establish consumer recognition of an otherwise generic term. Id. at 193-94. “[N]o matter how much money and effort the user of a generic term has poured into promoting the sale of its merchandise and what success it has achieved in securing public identification, it cannot deprive competing manufacturers of the product of the right to call an article by its name.”…In sum, courts have long sought to foreclose companies from monopolizing common terms, holding that no single competitor has the right to “corner the market” on ordinary words and phrases.
From there, the court gets into a long discussion on the standards of determining if a term is generic, with specific standards around the combining of two descriptive or generic terms and how that effects the compound term’s generic or not nature. It’s all very interesting if you’re into that sort of thing, as am I, but the court’s conclusion is the larger point.
Although the Court concludes that the combination of the generic elements “pretzel” and “crisps” does not create any additional meaning for consumers from which they can distinguish Plaintiffs’ product and thus indicates that PRETZEL CRISPS is generic, the Court does not rest its finding of genericness on that finding. Rather, after considering de novo all the evidence offered by the Parties which bears on consumers’ perception of the mark, the Court finds that, on balance, a preponderance of the evidence supports the conclusion that the mark, considered only in its entirety, is generic.
Of course it is. The term “pretzel crisp” tells you absolutely nothing about who produced that product. The rest of the branding on the packaging has to do that instead. Why? Well, because the term “pretzel crisp” merely tells you what product is in the bag or box you’re buying. It’s descriptive, a generic term for a type of foodstuff.
Meanwhile, this order is 53 pages long, filled with the history of this dispute, with survey evidence brought by both parties, legal standards and the like, all just to outline why, for the fourth time now, someone has had to tell Snyder’s that “pretzel crisp” is a generic term.
If that isn’t a perfect example of how insane ownership culture is, I can’t imagine what would be.