In Real Foods Pty., Ltd. v. Frito-Lay North America, Inc., [2017-1959, 2017-2009] (October 4, 2018), the Federal Circuit\u00a0affirmed-in-part,\u00a0vacated-in-part, and remanded the TTAB’s decision that the Real Foods marks CORN THINS and RICE THINS\u00a0 were merely descriptive and have not acquired distinctiveness.<\/p>\n
Real Foods argued that the marks are merely suggestive, and not descriptive, and even if they are descriptive, they have acquired secondary meaning.\u00a0 The Federal Circuit agreed with the TTAB that the marks were merely descriptive.\u00a0\u00a0When determining whether a mark is merely descriptive, one must consider the commercial\u00a0impression of a mark as a whole, viewed through the eyes of a consumer.\u00a0 One must\u00a0consider the mark in relation to the goods for which it is\u00a0registered, asking whether someone who knows what\u00a0the goods and services are will understand the mark to\u00a0convey information about them.\u00a0 The Federal Circuit found that substantial evidence supports the TTAB\u2019s finding\u00a0that the proposed marks are highly descriptive, noting that “corn” and “rice” are grains from which the products are made, and “thins” describe the physical characteristics of the products.\u00a0\u00a0Viewing the marks as composites does not create a
\ndifferent impression.<\/p>\n
The Federal Circuit rejected Real Foods arguments about the source of evidence of public understanding of its marks, noting\u00a0evidence of the\u00a0public\u2019s understanding of [a] term may be obtained from\u00a0any competent source.\u00a0 The Federal Circuit also rejected Real Foods’ arguments that the TTAB failed to properly consider third party registrations containing “THINS,” noting that these did not compel registration, because\u00a0each application must be examined on its own merits.<\/p>\n
The Federal Circuit also found that substantial evidence supported the TTAB’s finding of a lack of acquired distinctiveness.\u00a0\u00a0To determine\u00a0whether a mark has acquired secondary meaning, courts\u00a0consider: advertising expenditures and sales success;
\nlength and exclusivity of use; unsolicited media coverage;\u00a0copying of the mark; and consumer studies.\u00a0\u00a0 Real Foods\u2019 sales and advertising\u00a0figures weigh against a finding of acquired distinctiveness.\u00a0 Further\u00a0Real Foods spent\u00a0a relatively small amount on advertising as compared to\u00a0other expenditures.\u00a0 Finally,\u00a0research conducted
\nby a third party on behalf of Real Foods demonstrates\u00a0that consumers have low brand loyalty to and low preference\u00a0for Real Foods\u2019 corn and rice cakes, as compared to
\nits competitors.\u00a0 Frito-Lay’s evidence showed low recognition of the terms are marks.<\/p>\n
The Federal Circuit rejected Real Foods’ argument that the TTAB ignored evidence of substantially exclusive and continuous use, find that the TTAB expressly acknowledged the evidence, and was within its discretion to discount it.\u00a0 As to other evidence, this too was within the TTAB’s right to weigh evidence, and declined the the invitation to re-weigh the evidence.<\/p>\n
The TTAB dismissed Frito-Lay’s claim that CORN THINS and RICE THINS are generic.\u00a0 Frito-Lay argued that the TTAB improperly narrowed genus of the goods and services, tracking Real Foods’ amendment to the description of goods, which related to the species of goods, rather than considering the genus.\u00a0 Accordingly, the Federal Circuit remanded for the TTAB to\u00a0reconsider its selected genus and conduct its genericness\u00a0analysis in light of that genus.<\/p>\n
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In Real Foods Pty., Ltd. v. Frito-Lay North America, Inc., [2017-1959, 2017-2009] (October 4, 2018), the Federal Circuit\u00a0affirmed-in-part,\u00a0vacated-in-part, and remanded the TTAB’s decision that the Real Foods marks CORN THINS and RICE THINS\u00a0 were merely descriptive and have not acquired … Continue reading