Pretzel Crisps: A Brand or a Generic Term?

Trademark disputes that make the news usually involve an upstart allegedly infringing on the rights of an established company. But in a case noted by The New York Times, a small company is seeking to protect trademark rights that are disputed by a big competitor. Frito-Lay, the snack food giant, is trying to stop Warren and Sara Wilson from obtaining a trademark for Pretzel Crisps, the thin, cracker-like pretzels they invented. Frito-Lay, which "has tried unsuccessfully to sell its own flat pretzels," argues that pretzel crisps is a generic term that cannot be registered as a trademark. "Like ‘milk chocolate bar,'" it told the Patent and Trademark Office in 2010 , "the combination of 'pretzel' and 'crisp' gains no meaning as a phrase over and above the generic meaning of its constituent terms." That seems dubious to me, since I have encountered the phrase only in the context of this particular product, which was introduced in 2004. Before then, according to the Times, there was no such thing as a cracker-thin pretzel. But an expert consulted by the Times says Frito-Lay might have a case:

F. Scott Kieff, a law professor at George Washington University, said the case could go either way. Princeton Vanguard, he said, "will have to show that there is some secondary meaning to the term ‘pretzel crisp’ out there in the relevant population that goes beyond simply provoking thoughts of thin pretzels that are crispy and refer to something specific."

In any case, it seems clear that Frito-Lay (which declined to comment for the Times story) is mainly interested in hurting a competitor, as opposed to preserving the freedom to call its own future entrant in this category (assuming it ever comes up with a version people want to buy) "pretzel crisps":

"The big companies will do this to rough up their competitors," said Barton Beebe, a professor at the New York University Law School who specializes in intellectual property law. "If they can't win in the marketplace, they try to soften them up with legal fees and distract them. Even if they lose the case, it's a Pyrrhic victory because the small company has wasted so many resources.”

For Pretzel Crisps, Princeton Vanguard [the Wilsons' company] already has spent $1 million on legal fees.

"This fight," Warren Wilson tells the Times, "is about a big company that wants to dominate the snack food category by crushing a little company like ours rather than by competing with us."

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  • Rev. Blue Moon ||

    But I was told that trademark was the "good kind" of IP.

  • Amakudari||

    Without patents or trademarks, why would anyone bother to engage in pretzel innovation or build a pretzel brand? Why would anyone do anything, really?

  • Prometheus||

    Luckily, there was the dear savior government before somebody invented fire, the wheel, etc., etc.

    Hmmm...why did they bother to engage in innovation?

    Luckily, we've got government now. Whew!

  • Fuck you anti-government 'tard||

    We NEED our dear savior government to protect innovation! And property! And our profits!

  • ||

    Trademark isn't "intellectual property" in the constitutional sense (i.e., it's not used to "promote the progress of the sciences and the arts). It exists as a source identifier and serves a useful function.

    Of course, similar to copyright and patent, the government has increasingly expanded the power of trademark protection beyond that point to something ridiculous (at least, at times).

  • White Man's Ghost Dance||

    "CONSTITUTIONALISM": THE WHITE MAN'S GHOST DANCE
    www.spunk.org/texts/writers/black/sp001650.html

  • robc||

    And I was right.

    Even good tools ban be abused.

    And this does seem a legitimate question to me...is "pretzel crisp" a generic term or does it refer to a specific product?

  • Rev. Blue Moon ||

    I realized that, as a mild IP defender, that my snark made no sense. I was just being a sarcastic bastard.

  • Mild Communist||

    Mildness is the answer.

  • Mild Extremist||

    I'm extremely mild.

  • That's Mild Bending||

    I hate sharp corners.

  • kinnath||

    Trademark IP ==> good

    Bad trademarks ==> bad trademarks

  • No True Scotsman||

    True Communism ==> good
    Bad implementation ==> bad

  • Killazontherun||

    +everything

  • Alan||

    Trademarks can be the good kind of IP.

    In this case, Frito-Lay is right. It's a generic term. Keep in mind that in the Commonwealth countries, "crisps" is what we call "chips" - e.g. potato crisps.

  • Abstract property is violent||

    To destroy government, we must destroy abstract ownership, which necessarily needs the force of violence.

  • Rev. Blue Moon ||

    But it seems clear that Frito-Lay (which declined to comment for the Times story) is mainly interested in hurting a competitor, as opposed to preserving the freedom to call its own future entrant in this category (assuming it ever comes up with a version people want to buy) "pretzel crisps"

    How is that in any way clear? Frankly, it does sound rather generic to me.

  • ||

    I'm an IP defender, and "pretzel crisp" doesn't sound like a candidate for a trademark. Way too generic. "Crisp" in British English means potato chips, for instance. So it could be argued that these are pretzels in the similar form to a potato chip (flat and dippable).

    If it were "Pretzel Crispies" or "Crispalicious" or something I could see it.

    What I'm more confused about is whether Reason thinks trademarks are businesses shutting out competition, or whether fighting trademarks is businesses shutting out competition...make up your minds already.

  • Trademarks = shutting out comp||

    Doesn't matter how you're manipulating the trademark system, it's all just profits enforced with guns.

    But then so is all abstract privation property.

  • ||

    Actually, it's profits enforced with torts. But nice try, Jason.

  • Rev. Blue Moon ||

    Again, the Big Ignore. It really does work.

  • Big Ignorance?||

    It really does work.

    That's Fibertarianism in a nutshell. The Big Ignorance of Reality.

  • Joe M||

    I find it to be a pretty difficult issue, and probably different Reason writers have different views. They don't have to speak with one voice.

  • Speak with Forked Tongue?||

    They don't have to speak with one voice.

  • ||

    That's certainly true. Libertarians are notoriously divided on IP. In this case the way Jacob presents it is not really an argument so much as a statement of fact about Frito Lay's motivations. I wonder from Jacob's past writings if Frito Lay were the one registering "Pretzel Crisp" and the small company made their own version whether he'd defend Frito Lay's trademark from infringement.

  • Alan||

    Exactly.

  • ||

    They need a packaging redesign, something like

    in small print: Frito-Lay says we can't call this

    in the large print: "PRETZEL CRISP".

    Or, perhaps, just go with:

    CRISPY PRETZELS

  • protefeed||

    Well, no. Frito-Lay isn't saying this other company can't label their product "Pretzel Crisps". Frito-Lay is saying that this company can't legally prevent other companies from also labeling something "Pretzel Crisps".

    Unlike, say, "Fritos", which Frito-Lays claims the exclusive right to use on their packages of corn chips, even though "fritos" is spanish for "fried" and thus isn't something new and invented like "exxon".

  • Night Elf Mohawk||

    Could you trademark "Fries quatro queso dos fritos?"

  • ||

    Sorry. My apathy (and ennui) led me to get the story backwards.

  • OWS VPS||

    Shaking with Rage! They talk about "Real Rape" and an End to Contraception, Part 1
    =======================================

    I am shaking with rage, unable to write until now. You see, I just read one more diary about the right wing belief that women "need to pay to play". This diary may take all night to write because I am still shaking. I will try to be calm to counter their lies and statements of belief. They really do want women back under control, don't they? They really do want to take us back to 1850.

    I have read comments even here from men who want to discuss the finer points of a woman's decision for abortion. Unless you are the father of that baby your opinion does not count. Even if you are the father, the final decision belongs to the pregnant woman. Period. Because its her body, not yours.

    Now, let me tell you how it used to be. This is history that I know because I lived it.

    I got married the first time when I was 22 in Arizona. I was still a virgin because they would not prescribe birth control pills until the marriage was advertised in church, called the bans of marriage. Then they would only start the prescription three months before the marriage date. Condoms? Only men could buy them because they were behind the counter. The pharmacist controlled who bought them. This was what it was like back then.

    It wasn't that I wanted to wait until 22 to have sex, it was because I intended to go to college and get out of poverty. I knew that a pregnancy would end that dream completely. Back in 1963, the year I graduated high school, only girls who got caught with pregnancy stopped working on their dreams. I decided that wouldn't be me.

    After I was on the pill enough, shortly before the wedding, I tried to seduce my fiance. He told me that we should save something for the marriage. Colder water did not exist. Later in the marriage he called me a nymphomaniac because I wanted to have sex two or three times a week. He also believed women couldn't orgasm often due to their biology. This is the crap that was taught back then. I finally got a divorce after seven years and two children.

    A note on that marriage: The doctor had told him that no matter what I said on the wedding night, just keep going and break the hymen. I asked him to stop because it hurt so much, and he went right ahead. I bled so much on the hotel mattress that he turned it over so we could go to sleep. Ever the optimist, I kept going for the pleasure. Hence the nymphomaniac. This was what it was like back then.

    We moved to Illinois so he could go the graduate school. I went to work, putting my college on hold mostly, taking a few classes at night. The other women in graduate housing tried to give me a "PhT" for "putting hubby through". I refused it. They thought I was nuts. This was still the era when women went to college to find husbands. But events would alter that as time went by.

    I suffered from severe migraines then and the doctor told me that if I just followed my biological destiny and had a few kids, my headaches would go away. I changed my doctor, but most of them believed this was a woman's disease and did not take it seriously. This was what it was like back then.

    At work, I had my bra straps snapped by a boss, had my breasts touched by men who could influence job decisions, offered raises if I slept with them, and so on. That's the way it was back then. No matter how smart or learned, I was treated as below second class. Later in the 70s when I would get married again, my boss asked me if this meant I was going to become a "lady of leisure," which meant I would quit work. I asked him "why" and he became confused.

    To sum up Part 1, women were expected to get married, put their husbands through school if needed, have babies and stay at home. Another woman I knew said she went to college to be a more informed mother. I wanted school because I had a burning desire to learn, to study, for my own sake. Women were supposed to be virgins and virginal, to be taught by her husband the things the husband deemed she should know. We were virgins (good girls), mothers (sainted in our self-denial), or whores.

    Yes, really this is the way it was. But that would change. Tomorrow, I return to school.

  • ||

    Cool story, bro. What's your point? None of us here support the government limiting birth control, and many of us support legal abortion. Many of us have working wives and find sexual harassment disgusting. I want to be the stay-at-home dad when/if we get to that point, so my wife can fulfill her career goals. Not sure what you're getting at.

  • Konfounded Kristen||

    Because liberals, especially liberal women, love to perpetuate female victimhood.

  • Konfounded Kristen||

    Because liberals, especially liberal women, love to perpetuate female victimhood.

  • Joe M||

    Koch

  • Zeb||

    Some of us (not me) are also actually real, no foolin' women.

  • ||

    I'm guessing her point, if she ever gets around to making it, is that we should be taxed to pay for her hobbies.

  • Zeb||

    Pretzel crisps?

  • Matrix||

    this guy never posts anything relevant to the article, and very rarely even responds to replies on his posts.

  • Barely Suppressed Rage||

    "But I'm not talking about your male sexist snack, I'm talking about new NABISCO TITS!

    And cheese tits, and pizza tits - and tater tits. Betcha can't eat just one!"

  • Barely Suppressed Rage||

    How the hell did this end up here? Fuckin' squirrels.

  • Applederry||

    I have to agree with Frito-Lay. Pretzel crisps is just as generic a term as say, corn chips.

    Regardless of whatever Frito-Lay's motives are, the Wilson's shouldn't get the trademark, it's their own fault for not coming up with a brand name.

  • Rev. Blue Moon ||

    Oglethorpe: Wait, do you have any snack cakes or corn flavored chips? I'm frickin' starvin' here!
    Emory: Yeah, see if he's got some mini-pizzas!
    Oglethorpe: Yes, mini-pizzas. That would taste good to my palate. No wait!!
  • ||

    Probably generic. Definitely a weak mark.

    One weird thing about trademarks is that the government takes it upon itself to limit trademarks that are scandalous or offensive, which seems a little odd given that content regulation is supposedly mostly illegal.

    From 15 USC §1052:

    No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it--

    (a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 2(9) of the Uruguay Round Agreements Act [19 USC §3501(9)]) enters into force with respect to the United States. . . .

    Therefore, no Fuck Crisps.

  • ghost of George Carlin||

    What about new, Nabisco Tits?

  • Barely Suppressed Rage||

    "But I'm not talking about your male sexist snack, I'm talking about new NABISCO TITS!

    And cheese tits, and pizza tits - and tater tits. Betcha can't eat just one!"

  • Rev. Blue Moon ||

    you're trying to deny me access to delicious treats, you heartless trog.

  • Joe M||

    Also, fried chicken.

  • ||

    Colonel Slanders Kentucky Fucked Chicken.

  • Robert||

    No, that says you can have Fuck Crisps, but so can anyone else. You can't have them exclusively.

  • ||

    Not much worth in a trademark you can't register.

  • Anomalous||

    This would imply that California Potato Chips have to be made in California.

  • ||

    That's just for booze.

  • WTF||

    tl;dr, but I assume it's some shit about forcing taxpayers to pay for their neighbor's birth control. Because if I refuse to pay for something you want, I am 'denying you access'.

  • Zeb||

    No, pretzel crisps.

  • Barely Suppressed Rage||

    I have to say that those pretzel crisps sshown in the pic above are pretty damn good. My wife has been buying them for about a year, and they're very good with dips of various kinds. I can scarf down half a bag at a sitting.

  • ||

    peanut butter. EOM.

  • ||

    I have never liked pretzels, just dont like the taste. My wife loves them. But then, I like potted meat. When I open a can in the house she makes me go outside to eat the stuff. The smell makes her gag.

  • Ska||

    I have to agree, I have a bag of them right here. The everything bagel flavor - just make sure you have a pack of gum and a tongue scraper when you're done eating them.

    I should probably get some hummus to go with them, too....

  • ||

    Hmmm Ska, I have an excellent recipe for black bean hummus that is knock-out good. I guess I have to whip some up now.

  • ||

    Post!

  • ||

    Tomorrow, I return to school

    Hopefully, it's a school for wayward girls desperately seeking release of their pent-up sexual frustration.

    *sets DVR*

  • Rev. Blue Moon||

    Ew, do you think anyone affiliated with OWS deserves DVRing?

  • Yup||

    Sexy and stupid often go together:

    http://hotchicksofoccupywallstreet.tumblr.com/

  • ryan||

    I.P.-- Still bullshit.

  • ||

    Gotta side with Frito Lay-- you can't simply tack an adjective onto "Pretzel" and trademark the phrase. They might be able to trademark an eccentric spelling, such as "Pretzl Crizpz", or some such.

    It's like trying to trademark "Potato Chip".

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