CORN THINS and RICE THINS Merely Descriptive But Not Generic, Says TTAB

The Board sustained oppositions to registration of CORN THINS for popped corn cakes, and RICE THINS for rice cakes [CORN and RICE disclaimed], find the marks to be merely descriptive of the goods and lacking in acquired distinctiveness. However, the Board dismissed Opposer Frito-Lay's claims that the marks are generic, or so descriptive as to be incapable of acquiring distinctiveness. Frito-Lay North America, Inc. v. Real Foods Pty., Ltd., Oppositions Nos. 91212680 and 91213587 (February 21, 2017) [not precedential].

Genericness: The evidence of record included dictionary definitions, uses of the term "thin" by the parties and by third-parties in connection with snack products, newspaper and magazine articles referring to trademarks containing the word "thin," recipes, emails from applicant's customers, third-party registrations of marks containing the word "thin," some with the word disclaimed, and survey and other expert evidence.

The Board concluded that opposer had failed to carry its burden to prove genericness by a preponderance of the evidence. "[T]he evidentiary record presents a record with mixed uses of CORN THINS and RICE THINS, as well as THINS, in a trademark and non-trademark form" And so the Board dismissed the genericness claim.

Mere Descriptiveness: The Board found that a consumer will understand immediately from applicant's marks that the goods are thin in cross section and made primarily of rice and corn. The word "thins" has been used with food products that are thin in shape, and the ubiquity of use established that "thins" is not inherently distinctive for those products. The evidence showed that "thins" describes a characteristic of the goods, i.e., its thin shape. There was no persuasive evidence to confirm applicant's contention that "thins" is a double entendre, one meaning being the "lightness of the product and its low caloric content."

The Board therefore found the applied-for marks to be merely descriptive of the goods.

Acquired Distinctiveness: The Board found the applied-for marks to be highly descriptive of a feature or characteristic of the marks. According to the Board, applicant "has done little or no advertising," and its sales figures "while not insignificant, are not high." Moreover, the use of the term "thins" is not limited to applicant. Opposer's survey, "despite its problems," still had "some probative value in demonstrating limited recognition of CORN THINS as a mark." The Board therefore agreed with opposer that applicant failed to establish acquired distinctiveness.

The Board, however, did not find the applied-for marks to be so highly descriptive that they could never function as trademarks. [For example, "The Best Beer in America"]. There was limited third-party use of "rice thins" and "corn thins." And so the Board dismissed this claim.

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TTABlog comment: How many "thins" do you have to stack together to make a "fat"? BTW this case was handled under the ACR regime. Now that testimony may be submitted by declaration in all cases, will the number of ACR cases decline?

By the way, remember the PRETZEL CRISPS case, which went up to the CAFC and was remanded? Oral argument at the Board was held in June 2016. Still awaiting a decision. Why aren't TTAB oral arguments, like those at the CAFC, recorded and made available?

Text Copyright John L. Welch 2017.