Frito-Lay North America Inc won another round on Monday in its decade-long dispute with Snyder’s-Lance Inc in a North Carolina federal court challenge to the validity of Snyder’s “Pretzel Crisps” federal trademark registration.
Although Pretzel Crisps are a “hugely successful product,” based largely on Snyder’s trademark registration and efforts to “clear the field” of similarly named products, Snyder’s can’t “monopolize the common name” no matter how successful it is, U.S. District Judge Kenneth Bell in Charlottesaid.
Bethridge Toovell, a spokesperson for Snyder’s parent company Campbell Soup Co, declined to comment.
Frito-Lay and its attorney David Bernstein of Debevoise & Plimpton didn’t immediately respond to a request for comment, and neither did Snyder’s attorneys Alice Richey of Carmichael Ricks and David Armendariz of Pirkey Barber.
Princeton Vanguard LLC, which was acquired by Snyder’s in 2012, applied for a federal trademark covering “Pretzel Crisps” for its flat pretzel crackers in 2004. The PTO registered the mark on its supplemental register – which gives a trademark owner more modest protection than the office’s principal register – because it was descriptive.
Princeton reapplied for registration on the principal register in 2009, arguing “Pretzel Crisps” had become a distinctive brand name. Rold Gold pretzel maker Frito-Lay opposed, and argued “Pretzel Crisps” was a generic term for pretzel crackers that couldn’t be registered at all.
The Trademark Trial and Appeal Board ruled twice that the mark was generic: once in 2014 and again on remand from the U.S. Court of Appeals for the Federal Circuit in 2017. Snyder’s appealed the second ruling to the North Carolina court.
Bell ruled for Frito-Lay again on Monday, following the 4th U.S. Circuit Court of Appeals’ decision in March that Federal Circuit review of a PTO tribunal decision doesn’t preclude district court review of a different tribunal decision in the same case.
“Pretzel Crisps” is generic because consumers would perceive the words to refer to a “pretzel in the form of a crisp or cracker,” and the combination of words creates “no additional meaning,” Bell said.
It isn’t a descriptive mark – which conveys information about a feature, quality, or characteristic of a product and can sometimes receive federal protection – because the term is “simply another name for the goods being sold,” Bell said.
Bell – who weighed the evidence himself after the parties stipulated that he could rule based on the written record – cited the generic use of the term by competitors like Kraft Foods, media references, and consumer surveys in deciding that consumers perceive the name to be generic and ordering that the registration be canceled.
The case is Snyder’s-Lance Inc v. Frito-Lay North America Inc, U.S. District Court for the Western District of North Carolina.
For Frito-Lay: David Bernstein of Debevoise & Plimpton
For Snyder’s-Lance: Alice Richey of Carmichael Ricks and David Armendariz of Pirkey Barber