It’s another trademark brand name dispute, this time with a “small innovator” vs. “corporate giant” twist.  Princeton Vanguard, maker of Pretzel Crisps brand flattened pretzel snacks, has had their trademark challenged by snack food giant Frito-Lay, which claims the mark is too generic to sustain a trademark registration.  Princeton Vanguard is owned and operated by the Wilsons, who started out their company making funnel cakes at fairs and worrying about whether inclement weather would ruin their ability to sell.  Their first big hit was New York Style Bagel Chips, sliced, toasted bagels which they sold bagged to deli counters in grocery stores to avoid the stringent cost and restocking requirements of goods stocked on supermarket shelves.  The idea for crisp, flat pretzel snacks followed soon after, but the technology to make them didn’t exist until a decade later.  Currently, Pretzel Crisps are one of Princeton Vanguard’s hottest products.

Other snack food companies may see Princeton Vanguard as a threat.  According to a market research company in Chicago, Pretzel Crisps are the 6^th most important player in the pretzel snack market (although they are also often classified as a cracker).  Frito-Lay has tried to market its own versions of flat, crisp pretzels with Rold Gold Pretzel Chips and Rold Gold Pretzel Waves, but neither product is still being sold so we can assume they met with limited success.  And now it has moved to challenge Vanguard’s trademark registration.

The problem is that Vanguard’s trademark is actually worryingly weak.  The product is literally a crisp, flattened pretzel, and the name is “Pretzel Crisp.”  Trademarks are rated according to how directly their name corresponds to their product.  “Merely descriptive” trademarks are weak, while “arbitrary” or “fanciful” marks are the strongest.  Generic marks, which are the generic term for the product type, cannot be trademarked at all.  Because Pretzel Crisp describes the product so well, it is probably a descriptive mark.  Descriptive marks are valuable for reasons other than trademark strength; they are useful at attracting consumers who want to know what they are getting, and they show up more clearly on Internet searches for products in their category.  However, to sustain a descriptive trademark, an owner must show that it has created “secondary meaning” in the marketplace.  That means people must, on hearing the mark, think not just of the class of product but the specific product associated with the mark.  Usually trademark holders achieve this with advertising and longstanding market presence, and in court prove the existence or lack of secondary meaning via survey evidence.

Luckily for Princeton Vanguard, even if the mark is cancelled by the court for lack of secondary meaning, they could still market their product.  However, if they wanted to continue protecting their distinctive brand, they should probably change the name or add to it to make it something more distinctive.

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