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Packaging that Kills (a Trademark)

Posted in Advertising, Articles, Branding, Food, Genericide, Law Suits, Loss of Rights, Marketing, Product Packaging, Trademarks, TTAB

Killer packaging is a good thing. It can increase sales and establish a stronger emotional bond between the consumer and the product brand. The current packaging of Snack Factory’s Pretzel Crisps pretzel crackers might qualify as killer, but a long-anticipated and important trademark decision issued last Friday relied on an earlier version of the product packaging that was found to help kill the claimed Pretzel Crisps trademark on genericness grounds. Marketing, creative and design types should pay close attention to the Trademark Trial and Appeal Board’s decision in Frito-Lay North America, Inc. v. Princeton Vanguard, LLC. Link to pdf of decision is here.

In finding the compound term “Pretzel Crisps” to be generic for “pretzel crackers” the Board considered the packaging of cracker competitors that had used the term “crisps,” it considered media references to “crisps” treating it interchangeable with “crackers,” it considered dictionary evidence, it considered conflicting survey evidence and expert witness testimony, and it considered trade publications and magazine references with generic references to “pretzel crisps,” but the most damning evidence was probably an early version of the nutritional facts portion of Snack Factory’s Pretzel Crisps product packaging appearing on page 17 of the Board’s decision, here (note how the Board mildly scolded Princeton Vanguard for trying to keep the image under wraps as confidential).

The Board found this self-inflicted damage to the claimed Pretzel Crisps trademark to be “instructive” of the issue of genericness, ultimately weighing all evidence to invalidate the claimed mark. It didn’t matter that “crisps” was later removed from the nutritional facts information. Think of it as the first mistake that led to or justified the multitude of later generic references to “crisps” as being synonymous with “crackers.”

As you may recall, we highlighted the damaging nature of that evidence a while back, by showing a side by side image of the nutritional facts section for early Pretzel Crisps packaging (on the left) and current packaging (on the right), treating “crisps” and “crackers” the same, as generic product references:

So, product package designers beware, what words you or others chose to apply to product packaging matters, and if done wrong, it can foil any plans to own exclusive rights in a brand name.

Marketing types, if you don’t want to be the one to create evidence that kills the trademark on genericness grounds, stay in close touch with your favorite trademark type.

Last, trademark types, did you happen to notice how the Board omitted the words “primary” and “primarily” from its finding of genericness on page 27 — will that likely oversight be fixed or will it serve as a basis for appeal? Any predictions on whether we have the final word on this case yet?