We continue to anxiously await the Trademark Trial and Appeal Board’s decision in Frito-Lay North America, Inc. v. Princeton Vanguard, LLC, especially given the Board’s recent genericness ruling in Sheetz of Delaware, Inc. v. Doctor’s Associates, Inc., finding FOOTLONG generic for “sandwiches, excluding hot dogs.”

The question at issue in Frito-Lay’s trademark challenge to registration by Princeton Vanguard is whether PRETZEL CRISPS is generic for the goods depicted above — “pretzel crackers” according to Princeton Vanguard.

As you might have imagined, this high-stakes trademark dispute involves a real battle of each side’s trademark survey experts, both attempting to show how the relevant consuming public understands “pretzel crisps.” Both sides agree that the “primary meaning” controls, but they appear to disagree on whose views are relevant to the determination.

As you will recall from previous writings here, the “primary meaning test” amounts to a “majority rules” test of genericness. In 1938 the U.S. Supreme Court ruled “shredded wheat” generic for a type of cereal in Kellogg Co. v. National Biscuit Co.:

“But to establish a trade name in the term ‘shredded wheat’ the plaintiff must show more than a subordinate meaning which applies to it. It must show that the primary significance of the term in the minds of the consuming public is not the product but the producer. This it has not done.”

The survey commissioned by Frito-Lay found that fewer than half of respondents (41%) thought “pretzel crisps” was a brand name and an equal percentage of respondents (41%) thought “pretzel crisps” was a generic product category name, and the remaining respondents (18%) were unsure.

Princeton Vanguard argues that adequate “gate-keeping” was lacking and more respondents should have been excluded from the survey, especially those unable to demonstrate they knew the difference between certain brand/generic examples used in the screening questions. The more exclusive survey commissioned by Princeton Vanguard found that over half of respondents (55%) thought “pretzel crisps” was a brand name, less than half of respondents (36%) thought it was generic, and the remaining 9% were unsure.

The parties appear anxious for the Board’s decision as well. Within the last few weeks, both sides have sent letters to the panel of TTAB judges who heard oral argument back in July, explaining how the Board’s recent precedential decision in Sheetz works to their favor. Here is Princeton Vanguard’s letter, and here is Frito-Lay’s response letter.

Yet, in the end, after all the slicing and dicing of the competing surveys and the supporting testimony from the survey experts – similar to the result in Sheetz where the Board highlighted and showed a picture of an early generic use by Subway depicting Footlong in the same manner and style as 6? Sub and Wrap — my prediction is that Princeton Vanguard will be haunted by a different picture that is also worth a thousand words (or at least one that Princeton Vanguard doesn’t want to hear):

Frito-Lay characterizes this image in this way:

For “nearly six years, Applicant presented ‘Crisps’ as a generic term in the nutrition facts box. Applicant then substituted ‘Crackers’ for ‘Crisps’ using the same typeface, size, position, and capitalization, indicating to consumers that the two terms are synonymous.”

What do you think, is this another example of legal and marketing types not being on the same page sufficiently early to best position a designation for trademark protection?