J. Michael Keyes: "TTAB Goes "Bamm-Bamm" To Fruity Pebbles' Consumer Surveys"

Mike Keyes, a consumer survey expert and IP litigator at Dorsey & Whitney LLP, has given me permission to post this recent article from his newsletter, "Lanham Act Surveys for Lawyers" (subscribe here).

TTAB Goes "Bamm-Bamm" To Fruity Pebbles' Consumer Surveys

Post Foods' application to register its "Fruity Pebbles" color trademark recently got reduced to a bit of rubble. In re Post Foods, LLC, 2024 USPQ2d 25 (TTAB 2024). [TTABlogged here]. Why is that? Because the Board found Applicant's proffered evidence failed to meet some bedrock principles. We focus here on two consumer surveys that got stone-cold rejected by the Board. But first, just a bit of pre-historic background.

Fruity Pebbles was released in the early days of the 1970s with none other than the Grand Poobah himself, Fred Flintstone, as the pitch man for the cereal. About half of a millennium later, Post Foods sought to register the color of Fruity Pebbles for "breakfast cereals." Here's the drawing submitted to the USPTO:

Ser. No. 88857834

The description of the mark (amended during prosecution) was as follows:

The mark consists of the colors of yellow, green, light blue, purple, orange, red and pink applied to the entire surface of crisp cereal pieces. The broken lines depicting the shape of the crisp cereal pieces indicate placement of the mark on the crisp cereal pieces and are not part of the mark. (Emphasis added).

In an attempt to establish secondary meaning, Applicant submitted two consumer surveys in response to Office Actions issued by the Examiner. In rejecting the application, the Board ultimately pitched both into the slagheap for similar reasons, but we discuss them separately here.

The First Survey. This survey showed respondents a photograph of the "applied-for" mark and a "control" photograph of a plain crisp cereal product. The images were as follows:

The "Applied-For" Mark

The "Control" Product

The survey structure was not a standard "test and control" experimental design. Instead, it appears as though respondents were shown both the "applied-for" and "control" images. The report also details a number of "net" calculations arrived at without subtracting the control cell results from the test results.

The Board did not address these and other issues. Instead, the Board focused on the fact that the color mark application was not limited to a single configuration. It was shape agnostic. Thus, the Board rejected the survey because it did not "provide any evidence that the claimed colors have acquired distinctiveness for the identified goods, that is, all breakfast cereals, including other non-crisp rice cereals in other shapes." Id. at 22 (emphasis supplied).

The Second Survey. Applicant's next attempt to clear the slate and cobble something together went over like Fred's stone-age vehicle with a huge side of ribs served on it. The images used in this second survey effort were as follows:

The "Applied-For" Image

"Ring-Like" Cereal Control

Much like the first survey, the second one had some unusual dimensions.

But the Board did not address those either. Instead, it concluded that the purported "control" results showed the Applicant's color mark did not enjoy secondary meaning. As the Board observed, 89% of the responses on the control image were "Fruit Loops" (or similar terms). Thus, the Board concluded that:

Given that Applicant's proposed mark encompasses all breakfast cereal shapes, including ring-like shapes, this survey does not show that consumers associate the claimed colors on breakfast cereals with a single source. Id. at 23.

The Takeaway. This decision is a good reminder that survey evidence needs to align with the exact legal issues under consideration. Here, Applicant sought to register the multi-colored combination for a breakfast cereal regardless of whether it was shaped like a pebble, a ring, or other configuration. But the secondary meaning surveys did not shed light on that precise issue.

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TTABlogger comment: This article broke my pun-o-meter.

Text Copyright  J. Michael Keyes 2024.