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."