The Federal Circuit has affirmed a Trademark Trial and Appeal Board (TTAB) decision refusing to grant a trademark to Real Foods Pty Ltd. for “Corn Thins” and “Rice Thins,” finding the terms to be “merely descriptive.” Real Foods Pty Ltd. v. Frito-Lay N. Am. Inc., Nos. 17-1959, 17-2009 (Fed. Cir., entered October 4, 2018). Frito-Lay North America opposed Real Foods’ trademark application, but Real Foods argued both that the terms were not descriptive and that even if they were descriptive, they had acquired distinctiveness. The Federal Circuit found significant evidence to support TTAB’s conclusion that the terms are descriptive, noting that the first part of the terms is the primary ingredient and the second is the shape. “The composite marks are ‘merely descriptive’ because they ‘immediately convey[] knowledge of a quality or characteristic of the product[s],’ specifically the products’ main ingredients and thickness,” the court held.

The court also found that the marks had not acquired distinctiveness, citing an expert survey conducted by Frito-Lay purportedly showing that “‘10.3% of respondents stated that they associated CORN THINS with only one company’ and, when the pool of respondents was limited to ‘only purchasers and prospective purchasers of crispbreads/crispbread slices,’ that number increased to only ‘10.9% of the respondents.’” About half of that ten percent identified a company other than Real Foods as the maker of Corn Thins, the court noted. The Federal Circuit also found that TTAB had been too narrow in its determination for genericness—“corn cakes and rice cakes are the species, not the genus”—and remanded to TTAB to “reconsider its selected genus and conduct its genericness analysis in light of that genus.”

About The Author


For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.