In Fritolay Division v. Princeton Vanguard the defendant found how difficult it could be to trademark a centuries old food item. Pretzel said to have originated in Germany dating to the 16th century is a baked bread with intertwined knot like appearance as if hands folded in prayer. The different flavours, glazing with sugar, uses of pretzel and transition form a handcrafted artwork to mass produced snack, by itself make for very interesting reading. However, the Trademark Trial and Appeal Board (TTAB) examined in depth the mark opposed - ‘Pretzel Crisps’.
Genericness
The main contention of the opponent-plaintiff was that ‘pretzel crisps’ was a generic term for pretzel preparations. Both pretzel and crisps are common words. The TTAB applied a two part test – whether the name pretzel refers to the genus of goods and whether the public understood the term as referring to pretzel in general. While the defendant disclaimed exclusivity to pretzel it claimed that the mark had acquired distinctiveness. The defendant argued that crisps had been granted registration without disclaimer in other instances for snack foods. It also argued that the word pretzel and crisps had not been used in a unified fashion before and the word as such was more than the sum of its parts. The plaintiff contended that even together the compounded term remained generic and conveyed nothing new.
Survey - a less than crisp defence
To discharge its burden of proof the opponent (of the trademark) put forth a number instances when the word ‘crisps’ used as ‘thin crisps’, ‘wheat crisps’ had been opposed. Further crisps were also used to refer to crackers in general. Each party submitted results of public survey and understandably criticised the other. For instance as compared to popcorn and ginger ale, ‘pretzel crisps’ was not perceived as a brand name. However, this test was not found to be convincing. Questioning the methodology of merely asking the respondent whether he understood it to be a brand name or of a category was not the same as testing whether the person understood the difference. The defendant conducted the survey to understand if the public perceived the term as a brand or a common name. However the sample size of people who actually understood the difference and participated in the survey was found to be insufficient.
A number of uses in media referring to a snack as pretzel crisp was put forth. The TTAB opined that merely because there was no word in the dictionary and the defendant was the first to use/ trademark it, the defendant could not be granted monopoly. According weight to dictionary meaning, and use by media and food industry the TTAB held that ‘pretzel crisp’ was generic and not entitled to registration.