May 25, 2015

What are “Crisps”?

by Guest Blogger

England and America are two countries separated by a common language.

--George Bernard Shaw

How true, how true. Take the word "lift" for instance. Here in America, that's what I do when I go pick up my longtime partner and friend, Joel Beres, at his condominium to give him a "lift" to a University of Louisville football game. To our British friends though, a "lift" is an elevator.

Speaking of Joel's apartment style condominium, across the pond, the Brits would refer to that as "flat" which to us American's is the word we would use to refer to a deflated automobile tire, or in the case of the New England Patriots National Football League team, a deflated football. This of course brings to mind that "football" in England means the sport we call "soccer." (Well at least the game Brits refer to as "Rugby" is the same game we too refer to by that name, I think.)

In locating the precise wording of the famous George Bernard Shaw quote reproduced above about being "separated by a common language," I even came across a blog, the ongoing theme of which is this very subject â

And then there are those compartments in the rear of automobiles. We refer to them as "trunks." To the British they are "boots," whereas "boots" to us are the footwear of tall Texans and cowboys, or wannabes thereof.


Speaking of boots, tall Texans, wannabes, and the differing meanings of words depending on the perspective of the speaker again brings to mind Joel Beres, my longtime partner in friend mentioned above. Although I was raised here in Louisville and achieved the height of 6 feet, 2 inches, I was actually born in Ft. Worth, Texas. Joel was born in Montana, educated at Stanford and UCLA and began the practice of law in Los Angeles before fulfilling his lifelong dream to relocate to Louisville to become a Kentucky Lawyer. Whereas I truthfully can be referred to as a tall Texan, Joel claims to be of "average" height. Please judge for yourself from this photo below taken after I gave Joel a "lift" last fall to the University of Louisville "football" game at Notre Dame.

Jack And Joel

I'm the tall Texan on the left and Joel is the "average" height guy on the right. (By the way, we're both wearing our cowboy boots, me because I'm a Texan and Joel because he just wants to.)

Boots, Joel, and I really have nothing to do with the point of this blog. That aside was merely my attempt at some humor, or what our British friends would call humour. Back to the point of this blog though, what does all this "separated by a common language" musing have to do with the subject at hand? Very little actually other than the ponderings in my mind relating to an important American trademark law case that came down this week relating to whether the product name PRETZEL CHIPS may be protected as a trademark. See Princeton Vanguard, LLC v. Frito-Lay North America, Inc., No. 2014-1517, slip opinion (Fed. Cir. May 15, 2015). Here is a photograph of the product in issue.

Pretzel Crisps

The issue in this case relates to whether the name PRETZEL CRISPS is unique enough to be a trademark for pretzel crackers, or is it too generic of a reference to serve as a trademark. As the United States Court of Appeals for the Federal Circuit reminds us in this case, to be protectable as a trademark, a product name must be unique enough to indicate a particular source of a product, whereas a generic term is a "common descriptive name of a class of goods or services" which is "by definition incapable of indicating a particular source of the goods or services." The common example I use with my clients is "grocery store," a common descriptive reference that, by itself does nothing to indicate a particular grocery store brand, rather it is the "common descriptive name of a class of . . . services," thus it is a "generic" reference. Because it is generic, everyone who operates a grocery store can call it just that, a grocery store. What makes a grocery store name protectable as a trademark is if something distinctive is joined with the grocery store reference, for instance a KROGER® Grocery Store, or an ALBERTSONS® Grocery Store.

So what does this mean in relation to whether PRETZEL CRISPS can be protected as a trademark for pretzel crackers? The word "pretzel," of course, is a generic reference to pretzel crackers; so the real issue is whether the addition of the word "crisps" adds adequate uniqueness. to the reference.

So before I even read the decision in this case, I asked myself, "What are Crisps?" And that's why I've been musing about how, in the words of George Bernard Shaw, "England and America are two countries separated by a common language."

Take the word "chips." In America, a common meaning of "chips" is those thin cooked salty slices of potatoes or corn meal such as the LAY'S® and RUFFLES® brand potato chips, or the FRITO® and DORITOS® brand corn chips marketed by the Frito-Lay Company.

"Chips" in England though is the common reference to what we Americans call French fries, a British use perhaps best known worldwide in relation to "fish and chips." Rather than use the word "chips" like we do in America, Brits refer to small thin salty snacks such as potato chips as "crisps."

Although it has little to do with the question of what does the reference PRETZEL CRISPS mean to an American consumer, all these musings of mine remind me of my eldest daughter Aston who is putting her University of Louisville Masters of Business Administration degree to good use in her marketing career as an employee of the Frito-Lay Company. What she discovered while she was doing a study abroad in Greece is that what American's call "chips," and what British call "crisps" are what Greeks apparently call ΣÏo ΦoÏpγo. Here's how I know that:


Back on point though, in relation to the PRETZEL CRISPS case, a question one must ask is whether this reference is perceived here in America to be unique enough to indicate a particular source of a product, or is it merely a "common descriptive name of a class of goods."

So what do the words "crisp" or "crisps" mean? My dictionary reference says the word "crisp" is an adjective of various meanings such as " dry and brittle," or "fresh and firm" ("crisp lettuce"), or "clear and sharp" ("crisp reasoning"). My dictionary also points out that although the word is an adjective, it also has a British meaning, namely, a noun for the thin salty snacks such as what we call potato chips. So we've come full circle, a thin salty snack in America is a "chip," in England, it is a "crisp," or "crisps."

In the PRETZEL CRISPS case, the Trademark Trial and Appeal Board (the TTAB) which is a judicial branch of the United States Patent & Trademark Office noted that the word PRETZEL is generic, of course, for pretzel products and went on to hold that the word CRISPS is generic for crackers. So combining both words to use as a name for pretzel crackers is generic and thus not protectable as a trademark. The TTAB reasoning on the meaning is "crisps" puzzles me a bit. To get there, the TTAB referred to a dictionary definition of "crisp" as something "easily crumbled" or "brittle" such as "a crisp cracker." To that I say, yes, crackers may be crisp, but so is lettuce. If the TTAB rationale is right, than I guess "Crisps" could also mean "lettuce." I wonder if the TTAB went a bit far declaring the American adjective "crisp" to now be a noun, a word synonymous with "crackers." A wordsmith could play this game with most any adjective. Take, for instance, the word "cool" which means chilled in relation to beverages, for instance a "cool beverage." If the TTAB's reasoning is correct, then the word "cool" must also now mean "beverage." I think not.

In reviewing this decision on appeal, the United States Court of Appeals for the Federal Circuit did not totally agree with the rationale of the TTAB. Indeed, the Federal Circuit noted the survey evidence submitted to the TTAB did not necessarily fully support the TTAB finding that PRETZEL CRISPS is a generic reference to pretzel crackers. The Federal Circuit vacated the TTAB ruling that PRETZEL CRISPS is generic and returned the case to the TTAB with instructions to reconsider its ruling and to focus on what is the "relevant public's understanding of the term PRETZEL CRISPS" as a whole.

In my view, if the relevant public were consumers in England, the name might clearly be generic. I'm not so certain about the relevant public in America. The relevant public in America may well perceive PRETZEL CRISPS as a product name unique enough to indicate a particular source of a product, not as a "common descriptive name of a class of goods " which is "incapable of indicating a particular source of the goods or services."

So the case is returning back to the TTAB for a re-do. Stay tuned . . . and keep your boots on.

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