Crisps = Chips = Crackers?

by Winthrop & Weinstine, P.A.
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Seeing these on the store shelf this weekend reminded me that we are still anxiously awaiting the USPTO’s decision from the Trademark Trial and Appeal Board (TTAB) as to whether the words “pretzel crisps” will be found generic for “pretzel crackers” –basically, a public domain category or class of goods term, in the same way that “footlong” was found generic for sandwiches.

It took the TTAB just under one year from oral argument to render the ”footlong” genericness decision in Sheetz of Delaware, Inc. v. Doctor’s Associates, Inc.

By the way, did anyone notice that Subway did not appeal the genericness ruling, making the decision final? So, I’ll ask again, what about those Millions of False TM Notices to Remove?

If the TTAB takes the same amount of time in deciding where “pretzel crisps” falls on the Spectrum of Distinctiveness, it will be July before we know the answer, but something tells me the TTAB’s decision in Frito-Lay North America, Inc. v. Princeton Vanguard, LLC won’t be the final answer, it is hard to imagine either party letting this one go without an appeal.

The USPTO’s Trademark Acceptable Identification of Goods & Services Manual has listed “potato crisps” as a generic product designation since 1991 and “potato crisps and chips” since 2007, so can “pretzel crisps” expect a different result?

Dear readers, any predictions on how this one will be decided, and when?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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