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When is A Win on Appeal not a Win?


On September 6, 2017, The Trademark Trial and Appeal Board (the Board) issued a decision granting an opposition to registration of the mark, PRETZEL CRISPS, on the Principal Register, and cancelling a Supplemental Registration of the mark PRETZEL CRISPS.  The decision can be found here.  The Board had originally granted the opposition and cancelled the registration in a decision issued on February 28, 2014, Frito-Lay N. Am., Inc. v. Princeton Vanguard, LLC, 109 USPQ2d 1949 (TTAB 2014).  On appeal, the Federal Circuit vacated the decision and remanded the case to the Board after finding that the Board had used an incorrect standard.  Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d 1827 (Fed. Cir. 2015).  So Princeton Vanguard won, right?  No.

On remand, the Board asked the parties to re-brief the case on the original record.  The Board then came to the same conclusion:  the mark, PRETZEL CRISPS, as used on pretzel crackers is generic.  Even on remand, Princeton Vanguard lost both registrations.