Debate Over Pretzel Crisps Trademark Will Continue After Fourth Circuit Ruling

The Fourth Circuit ruled Wednesday that the plaintiffs in a lawsuit against Frito-Lay Inc. can appeal their trademark request for “Pretzel Crisps” again, which already was appealed after a Trademark Trial and Appeal Board (TTAB) ruling, this time to the district court.

The lawsuit was appealed from the Western District of North Carolina, where it was heard by Judge Kenneth Bell. Bell decided after the suit was in the court for a few years that the lawsuit could not be appealed and dismissed the case for lack of jurisdiction. Judges Paul Niemeyer, James Wynn, and Henry Floyd of the Fourth Circuit reversed this decision and remanded to the district court. They explained in their opinion that “we join our sister circuits that have considered this question and hold that a district court may review a subsequent decision of the TTAB in such circumstances.”

The debate over “Pretzel Crisps” and the plaintiff’s request for a trademark of the phrase now will return to the Western District of North Carolina to be heard for a third time, against Frito-Lay’s argument that the phrase is not distinctive. Plaintiffs Snyder’s-Lance Inc. and Princeton Vanguard LLC claimed in their reply brief before the Fourth Circuit that the appeal should be heard because the forum in which a lawsuit is heard is determined by each decision, not each case; thus, they can appeal the TTAB judgment. 

The court’s opinion related the history of the debate: Reportedly, Princeton Vanguard applied for a trademark registration for “Pretzel Crisps” in 2004 and was granted a descriptive mark rather than a distinctive mark, holding fewer protections. Princeton Vanguard reapplied hoping for a distinctive mark in 2009, and Frito-Lay objected, claiming that “Pretzel Crisps” was simply generic for pretzel crackers. The TTAB ruled in 2014 that it was not distinctive. 

The plaintiffs appealed to the Federal Circuit, which ruled in its favor in 2015, saying that the board looked at “Pretzel” and “Crisps” separately instead of examining the complete phrase; however, in 2017, after the case was remanded, the TTAB concluded that the phrase was still generic and had not acquired distinctiveness. After this ruling, the plaintiffs asked for a review in the district court, where the court eventually determined, in favor of Frito-Lay, that the decision could not be appealed to the district court, given it already had been appealed to the federal court.

The plaintiffs are represented by Kirkland & Ellis LLP and Debevoise & Plimpton LLP. The defendant is represented by Pirkey Barber PLLC.