Real Foods Pty Ltd. v. Frito-Lay North America, Inc

  • Oct 10 2018
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  • Category: CAFC Updates

Appellant Real Foods sought registration of two marks: “CORN THINS,” for “crisp-bread slices predominantly of corn, namely popped corn cakes”; and “RICE THINS,” for “crispbread slices primarily made of rice, namely rice cakes.” Cross-Appellant Frito-Lay opposed the registrations, arguing that the proposed marks should be refused as either generic or descriptive without having acquired distinctiveness. The TTAB refused registration of Real Foods’ applied-for marks, finding the marks “are merely descriptive and have not acquired distinctiveness”, but also dismissing Frito-Lay’s “genericness claim.” Both parties appeal. The CAFC finds that the terms corn and rice in Real Foods’ proposed marks are descriptive because they identify “ingredients,” which are “qualities or properties” of the goods, that the term thins describes physical characteristics of the corn and rice cakes, and that the TTAB properly determined that the marks have not acquired distinctiveness. The CAFC further finds that the TTAB erred in applying the “two-step inquiry” for genericness by improperly narrowing the genus of the goods at issue.  Accordingly, the CAFC affirms-in-partvacates-in-part, and remands.

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