Frito-Lay North America, Inc.v.Real Foods Pty Ltd.

Trademark Trial and Appeal Board

Feb 21, 2017

No. 91212680 (T.T.A.B. Feb. 21, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: February 21, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Frito-Lay North America, Inc.
v.
Real Foods Pty. Ltd.
________

Opposition No. 91212680
Opposition No. 912135871
_______

William G. Barber and Paul Madrid of Pirkey Barber PLLC, for Frito-Lay North
America, Inc.

Bruce S. Londa, Jeanne M. Hamburg and Ami Bhatt of Norris McLaughlin &
Marcus P.A., for Real Foods Pty. Ltd.
_____

Before Zervas, Mermelstein and Masiello,
Administrative Trademark Judges.

1 The Board granted the parties’ stipulation to consolidate Opposition Nos. 91212680 and
91213587 on March 3, 2014. 11 TTABVUE.
Citations in this opinion are to the record in Opposition No. 91212680 and to the TTABVUE
docket entry number and the electronic page number where the document or testimony
appears. Because the Board primarily uses TTABVUE in reviewing evidence, the Board
prefers that citations to non-confidential parts of the record include the TTABVUE docket
entry number and the TTABVUE page number. For material or testimony that has been
designated confidential and which does not appear on TTABVUE, the TTABVUE docket
entry number where such material or testimony is located should be included in any citation.
See Turdin v. Trilobite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014).
Opposition Nos. 91212680 and 91213587
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Opinion by Zervas, Administrative Trademark Judge:
Real Foods Pty. Ltd. (“Applicant”) is the owner of the following two applications
on the Principal Register for standard character marks:
● Application Serial No. 791110742 for CORN THINS filed
on January 19, 2012, for “crispbread slices predominantly
of corn” in International Class 30, based on a request for
extension of protection filed under Section 66(a) of the
Trademark Act of 1946, 15 U.S.C. § 1141f(a); and
● Application Serial No. 858200513 for RICE THINS filed
on January 10, 2013, for “crispbread slices primarily made
of rice” in International Class 30, based on Section 1(a) of
the Trademark Act, 15, U.S.C. § 1051(a), and claiming first
use and first use in commerce in 2007.
The terms CORN and RICE have been disclaimed in the respective applications.
In the respective amended notices of opposition, Frito-Lay North America, Inc.
(“Opposer”) alleges that RICE THINS and CORN THINS are (i) generic names for
Applicant’s respective goods; (ii) so highly descriptive of Applicant’s goods as to be
incapable of acquiring distinctiveness; and (iii) merely descriptive of thin slices of
crispbread made of rice or corn, as the case may be, and Applicant has not provided
proof that THINS has acquired distinctiveness.4
Applicant denied Opposer’s salient allegations in its amended answers (filed May
13, 2015) to each of Opposer’s amended notices of opposition and claimed acquired
distinctiveness in the marks CORN THINS and RICE THINS as an affirmative

2 Application Serial No. 79111074 is the subject of Opposition No. 91212680.
3 Application Serial No. 85820051 is the subject of Opposition No. 91213587.
4 6 TTABVUE.
Opposition Nos. 91212680 and 91213587
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defense in its amended answers.5 Applicant also pleaded that the amended notices of
opposition fail to state claims upon which relief may be granted. Applicants did not
pursue this defense by motion under Fed. R. Civ. P. 12(b)(6) and, accordingly, it is
deemed waived. See Harry Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d
1419, 1422 (TTAB 2014).6
Accelerated Case Resolution
On November 4, 2015, the parties filed a stipulation,7 which the Board approved
on November 10, 2015, to forego a traditional trial and instead resolve this dispute
via the Board’s Accelerated Case Resolution (“ACR”) procedure.8 The parties agreed,
inter alia, that the Board may resolve this consolidated proceeding based on (1) the
parties’ cross-motions for summary judgment, responses and reply briefs filed in
support thereof, and evidence and testimony submitted with, the cross-motions; (2)
the parties’ briefs on a motion filed by Applicant to amend the identifications of goods
in its involved applications; and (3) supplemental briefing, but limited to particular
topics. Additionally, the parties agreed that all objections to the admissibility of the
evidence and testimony submitted with the cross-motions for summary judgment are
waived, but without prejudice to the parties’ rights to rely on arguments concerning
the probative value of such evidence made in briefs filed in connection with the cross-

5 62 TTABVUE (in Opp. No. 91212680) and 12 TTABVUE (in Opp. No. 91213587). Applicant
did not claim acquired distinctiveness pursuant to Section 2(f) of the Trademark Act, 15
U.S.C. § 1052(f), in either application, as filed or during prosecution.
6 7 TTABVUE.
7 70 TTABVUE.
8 71 TTABVUE.
Opposition Nos. 91212680 and 91213587
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motions for summary judgment or the right to assert arguments concerning the
probative value of such evidence raised by the parties’ supplemental briefing.9
Further, the parties agreed that the Board may resolve any issues of fact arising from
the parties’ summary judgment briefs and evidence.
The Record
In addition to the pleadings, Applicant’s opposed applications are automatically
of record pursuant to Trademark Rule 2.122(b), 37 CFR § 2.122(b). The other evidence
of record consists of:
Submitted by Opposer:
● Declaration of Diana L. Rausa, paralegal with Opposer’s
law firm, and accompanying exhibits;
● Expert report of David W. Stewart, Ph.D., Professor of
Law and Marketing at Loyola Marymount University, and
accompanying exhibits;
● Declaration of Robert D. Frank, Ph.D., President of
Illuminor LLC, a firm which specializes in trademark
research, consulting and expert witness testimony, and
accompanying exhibits, including his report;
● Declaration of Dr. Isabella Cunningham, Chair of the
Department of Advertising and Public Relations at the
University of Texas at Austin, and accompanying exhibits,
including her report;
● Declaration of Paul Madrid, one of Opposer’s attorneys,
and accompanying exhibits; and
● Declaration of Jeanette Zimmer, Assistant Secretary of
Opposer, and accompanying exhibits.

9 Opposer therefore has waived its objections to the admissibility of the declaration of Michael
Movitz, to ¶¶ 6 and 21 of Michael Pels’ declaration referring to Mr. Movitz’s testimony, and
to the declaration of Jessie Roberts. See pp. 4-5 of Opposer’s response to Applicant’s summary
judgment motion. 47 TTABVUE 5-6.
Opposition Nos. 91212680 and 91213587
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Submitted by Applicant:
● Declaration of Michael Pels, founder and Managing
Director of Applicant, and accompanying exhibits;
● Confidential supplemental declaration of Michael Pels;
● Declaration and rebuttal declaration of Sarah Butler,
Vice President, Intellectual Property and Survey and
Sampling Practices, NERA Economic Consulting
(‘‘NERA’’), and accompanying exhibits;
● Declaration of Jessie Roberts, an attorney and a former
Trademark Examining Attorney and Administrator at the
USPTO, and accompanying exhibits;
● Declaration of Hal Poret, Senior Vice President at ORC
International, a market research firm, and accompanying
exhibits;
● Confidential declaration of Michael Movitz, Vice
President of Sales Operations for SPINS LLC, a provider
of retail consumer data, analytics and consulting,
particularly in the Natural, Organic and Specialty
Products industries, and accompanying exhibits; and
● Declaration of Ami Bhatt, one of Applicant’s attorneys,
and accompanying exhibits.
Standing
Applicant stipulated on April 21, 201510 that Opposer has standing to oppose the
applications for CORN THINS and RICE THINS, and the Board approved the
stipulation on May 12, 2015.

10 59 TTABVUE. (Parties’ stipulation resolving Opposer’s cross-motion for summary
judgment on standing and applicant’s equitable affirmative defenses.)
Opposition Nos. 91212680 and 91213587
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Applicant’s Motion to Amend the Goods
On September 2, 2014, Applicant filed a motion with the Board to amend the
identification of goods in both of its applications.11 In its application for CORN
THINS, Applicant seeks to amend its identification of goods from “crispbread slices
predominantly of corn,” to “crispbread slices predominantly of corn, namely popped
corn cakes”; and in its application for RICE THINS, Applicant seeks to amend the
identification of goods from “crispbread slices primarily made of rice,” to “crispbread
slices primarily made of rice, namely rice cakes.” The Board, in denying the cross-
motions for summary judgment, deferred consideration of Applicant’s motion to
amend the identification of goods in each application until final decision.12
Applicant maintains in its motion to amend that “the amendments are
narrowing.”13 In its summary judgment motion, Applicant explains, “after
commencement of this proceeding, Real Foods [Applicant] realized that its use of the
term ‘crispbreads’ would likely not be understood by American consumers to refer to
rice cakes and corn cakes (as opposed to Australian consumers who commonly use
the term).”14 Applicant is an Australian company and the application for CORN
THINS is based on an Australian registration. Opposer contests the motion to amend,

11 14 TTABVUE.
12 63 TTABVUE 10.
13 14 TTABVUE 2.
14 30 TTABVUE 10, citing Pel. Decl. ¶ 20, 31 TTABVUE 9.
Opposition Nos. 91212680 and 91213587
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but concedes that “the evidence and admissions in the record indisputably show that
popped corn and rice cakes are kinds of crispbread and, thus, kinds of crackers.”15
Pursuant to Trademark Rule 2.71(a), 37 C.F.R. § 2.71(a), an “applicant may
amend the application to clarify or limit, but not to broaden, the identification of
goods ….” Because Opposer has conceded in its brief that “the evidence and
admissions in the record indisputably show that popped corn and rice cakes are kinds
of crispbread,”16 Applicant’s motion to amend is granted, and the operative
identifications of goods in this proceeding are “crispbread slices predominantly of
corn, namely popped corn cakes” for the CORN THINS application, and “crispbread
slices primarily made of rice, namely rice cakes” for the RICE THINS application.
Genericness
It is Opposer’s burden to establish that RICE THINS and CORN THINS are
generic by a preponderance of the evidence. Princeton Vanguard, LLC v. Frito-Lay N.
Am., Inc., 786 F.3d 960, 114 USPQ2d 1827, 1830 (Fed. Cir. 2015) (“In an opposition
or cancellation proceeding, the opposer or petitioner bears the burden of proving
genericness by a preponderance of the evidence.”) (citing Magic Wand Inc. v. RDB
Inc., 940 F.2d 638, 19 USPQ2d 1551, 1554 (Fed. Cir. 1991); Alcatraz Media, Inc. v.
Chesapeake Marine Tours Inc., 107 USPQ2d, 1750, 1761 (TTAB 2013), aff’d, 565 Fed.
Appx. 900 (Fed. Cir. 2014)).

15 72 TTABVUE 3.
16 Opposer’s Supp. Reply Br. at 2, 74 TTABVUE 1.
Opposition Nos. 91212680 and 91213587
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There is a two-part test used to determine whether a designation is generic: (1)
what is the genus of goods or services at issue, and (2) does the relevant public
understand the designation primarily to refer to that genus of goods or services.
H. Marvin Ginn Corp. v. Int’l Assn. of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528,
530 (Fed. Cir. 1986). The relevant public’s perception is the primary consideration in
determining whether a term is generic. Loglan Inst. Inc. v. Logical Language Grp.
Inc., 902 F.2d 1038, 22 USPQ2d 1531, 1533 (Fed. Cir. 1992). Evidence of the public’s
understanding of a term may be obtained from any competent source, including
testimony, surveys, dictionaries, trade journals, newspapers and other publications.
Id. at 1533; Dan Robbins & Assocs, Inc. v. Questor Corp., 599 F.2d 1009, 202 USPQ
100, 105 (CCPA 1979).
The genus of the goods at issue
The genus of the goods is determined by focusing on the identification of goods in
the subject applications. See In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d
1632, 1636 (Fed. Cir. 2016); Magic Wand, 19 USPQ2d at 1552 (“[A] proper
genericness inquiry focuses on the description of [goods] set forth in the certificate of
registration.”); Sheetz of Del., Inc. v. Doctor’s Assocs. Inc., 108 USPQ2d 1341, 1350
(TTAB 2013). We hence consider the genus in each application to be established by
the amended identifications of goods. Therefore, the genera in the two applications
are, respectively, popped corn cakes and rice cakes. Accordingly, we must consider
whether:
● CORN THINS is a generic name for popped corn cakes;
and
Opposition Nos. 91212680 and 91213587
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● RICE THINS is a generic name for rice cakes.
The relevant public
The second part of the genericness test is whether the relevant public
understands the designation primarily to refer to the genus. The relevant public for
a genericness determination is the purchasing or consuming public for the identified
goods. Magic Wand Inc. v. RDB Inc., 19 USPQ2d at 1553, citing In re Montrachet
S.A., 878 F.2d 375, 11 USPQ2d 1393, 1394 (Fed. Cir. 1989); In re Merrill Lynch,
Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987);
Marvin Ginn, 228 USPQ at 530; Dan Robbins & Assocs., Inc. v. Questor Corp., 202
USPQ at 105. The relevant public is the general consuming public who consume and
eat the snack foods identified.
Public perception
In determining the proper analysis of the terms before us, we look to Princeton
Vanguard, supra.17 The court stated:
[E]ven in circumstances where the Board finds it useful to
consider the public’s understanding of the individual words
in a compound term as a first step in its analysis, the Board
must then consider available record evidence of the public’s
understanding of whether joining those individual words
into one lends additional meaning to the mark as a whole.
Princeton Vanguard, 114 USPQ2d at 1832-33. See also 1800Mattress.com IP, 586
F.3d 1359, 92 USPQ2d 1682, 1684 (explaining that the Board appropriately
considered the separate meanings of “mattress” and “.com” when determining that

17 The parties’ supplemental briefing in this case extensively discussed the Federal Circuit’s
holding in Princeton Vanguard, supra.
Opposition Nos. 91212680 and 91213587
- 10 -
the combination “mattress.com” was generic); In re Hotels.com LP, 573 F.3d 1300, 91
USPQ2d 1532, 1535 (Fed. Cir. 2009) (affirming the Board’s finding that “the
composite term HOTELS.COM communicates no more than the common meanings
of the individual components.”).
We therefore set forth the pertinent evidence as introduced by the parties into the
record for this proceeding, which includes dictionary definitions of the components of
the composite marks, uses of “thins,” “rice thins” and “corn thins” in websites and
articles, Applicant’s promotional materials, third-party registrations, Internet search
results and a consumer survey. See Alcatraz Media, 107 USPQ2d at 1762
(“Competent sources to show the relevant purchasing public’s understanding of a
contested term include purchaser testimony, consumer surveys, dictionary
definitions, trade journals, newspapers and other publications.” (citations omitted)).18
Opposer’s Evidence
Dictionary definitions
“Thin” is defined in the sole probative definition of record from dictionary.com as
“having relatively little extent from one surface or side to the opposite; not thick.”19
There are no definitions from dictionaries which appear in printed form in the record

18 The extensive material in the record from the prosecution files of third-party trademark
applications has limited probative value. See In re Datapipe, Inc., 111 USPQ2d 1330, 1336
(TTAB 2014) (“Although the United States Patent and Trademark Office strives for
consistency, each application must be examined on its own merits. … [T]he Board is [not]
bound to approve for registration an Applicant’s mark based solely upon the registration of
other assertedly similar marks for other goods or services having unique evidentiary
records.”).
19 Exh. 44 Rausa Decl., 47 TTABVUE 407.
The definitions in the record from www.collinsdictionary.com are of limited probative
value because they indicate they are “British English,” and not “American English.”
Opposition Nos. 91212680 and 91213587
- 11 -
for “thins,” as a noun. On the other hand, much of the evidence shows use of the term
as a noun.
Opposer’s use of “Thins”
Opposer has used “Thins” as a noun for cracker products, including:
(i) Rold Gold Pretzel Thins,20

(ii) Stacy’s Pretzel Thins,21

20 Exh. F Zimmer Decl., 51 TTABVUE 267.
21 Exh. F Zimmer Decl., 51 TTABVUE 25.
Opposition Nos. 91212680 and 91213587
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(iii) Tostitos Cinnamon Thins;22

and Tostitos Tex-Mex Thins.23 Opposer also used “thins” for DORITOS Tortilla
Thins.24
Third party snack manufacturers’ use of THINS
The following third-party uses of “thins” as a noun for various cracker products
are in the record;

22 Exh. F Zimmer Decl., 51 TTABVUE 264.
23 Zimmer Decl. ¶ 11, 50 TTABVUE 287.
24 Zimmer Decl. ¶ 11, 50 TTABVUE 287, 51 TTABVUE 172-73.
Opposition Nos. 91212680 and 91213587
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(i) Sesmark Rice Thins, Sesmark Sesame Thins And Sesmark Brown Rice
Thins;25

(ii) Nabisco Vegetable Thins;26

25 Exh. C Frank Decl., 49 TTABVUE 531.
26 Exh. 26 Rausa Decl., 47 TTABVUE 131.
Opposition Nos. 91212680 and 91213587
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(iii) Keebler Town House Pretzel Thins;27

(iv) Gratify Sea Salt Thins;28

27 Exh. F Frank Decl., 49 TTABVUE 1541.
28 Exh. F Frank Decl., 49 TTABVUE 632.
Opposition Nos. 91212680 and 91213587
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(v) Blue Diamond Artisan Nut Thins;29 and

(vi) Pepperidge Farm Baked Naturals Pretzel Thins.30

29 Exh. F Frank Decl., 49 TTABVUE 606.
30 Exh. F Frank Decl., 49 TTABVUE 629.
Opposition Nos. 91212680 and 91213587
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In addition, Opposer’s contributions to the record include examples of the
following uses of “thins” as a noun in marks taken from websites for snack food
products, especially crackers and crispbread products:31 Back To Nature Multi-Seed
Gluten Free Rice Thins; Nabisco Rice Thins and Wheat Thins; Stoned Wheat Thins;
Ryvita Thins; Nature Valley Granola Thins; barkTHINS;32 Pocket Thins Flatbread;
and Gratify Gluten Free Cracker Thins and Pretzels Sesame Seed Thins.33 Examples
of “Thins” used as a noun in connection with other products include Potato Thins;
Newton’s Fruit Thins; Oroweat Sandwich Thins Rolls; Thomas Bagel Thins;
Warburtons Sandwich Thins; Dempster’s Thins; Annas Swedish Thins; and Mandy’s
Cookie Thins.

31 See also Zimmer Decl., ¶ 12, 50 TTABVUE 287, identifying Sesmark Rice Thins, Sesame
Thins, and Brown Rice Thins; Nabisco Rice Thins and Vegetable Thins; Keebler Town House
Pretzel Thins; Nonni’s Thin Addictives Almond Thins; Gratify Sea Salt Thins; Blue Diamond
Artisan Nut Thins; World Table Rice Thins; Pepperidge Farm Baked Naturals Pretzel Thins;
and Ritz Munchables Pretzel Thins, as cracker products competing with Opposer.
Ms. Zimmer’s testimony in her declaration is based on a search she conducted of the
Global New Products database maintained by Mintel Group Ltd. of food products in the
United States. No information is provided about the Mintel Group Ltd. or how it maintains
its database, and particularly whether material appearing in the database reflects current
uses of marks. Her testimony based on material she obtained from the Mintel Group Ltd.
database therefore has extremely limited probative value, because it does not discuss
products she knew or had determined were for sale.
32 barkTHINS appears to be a chocolate-coated pretzel. Exh. F Frank Decl., 49 TTABVUE
605.
33 Exhs. 1-42, Rausa Decl., 47 TTABVUE, 42 - 384.
Because the material submitted by Opposer to show third-party use of “thins” from Rude
Health reflects a London address, or includes pricing in British pounds and not U.S. dollars,
the Rude Health material in the record does not appear to be evidence of use in the United
States and hence is of questionable probative value. The same holds true for the material
from Pureharvest; the web address has an “.au” suffix and the spelling of certain words is not
American English. See, e.g., “fibre” and “flavour” at Exh. 9-10 Rausa Decl., 47 TTABVUE 73-
80.
Opposition Nos. 91212680 and 91213587
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Dr. Frank’s Declaration
Opposer retained Dr. Robert Frank, President and founder of Illuminor LLC,
which provides trademark research, consulting and expert witness testimony, to
conduct a search of industry sources and news media for use of the term THINS in
the marketplace and prepare an expert report. Dr. Frank’s research yielded, inter
alia, the following, which use “thins” with a lower case “t”:
Buffalo-style ‘wings’ that don’t bite back, Daily Herald
(Arlington Heights, IL) (Sept. 4, 2013):
On a recent trip to the grocery store we also discovered
Buffalo flavored potato chips and pretzel thins, so we had
plenty of breading options with which to experiment.34
Guiding a neighborhood’s appetite: The New York Times
(May 18, 2011):
She reached over to hold his hand. Then she ate one of the
baked potato thins she invented years ago, which are now
a store favorite. 35
Super bowls for Sunday: Snack away with health dips
while watching the big game: Pittsburg Post-Gazette
(Pittsburgh, PA) (Feb. 3, 2011):
She suggests serving it with Marbled Rye Toasts, Baked
Pita Chips, Crostini (all recipes in the book) or pretzel
thins. 36
Festive Whoopee Pie Appetizer: Daily Herald (Arlington
Heights, IL) (Dec. 29, 2010):
Crackers, such as thin white cheddar rice or savory rice
thins[.]37

34 Exh. B Frank Decl., 49 TTABVUE 373.
35 Exh. B Frank Decl., 49 TTABVUE 393.
36 Exh. B Frank Decl., 49 TTABVUE 395.
37 Exh. B Frank Decl., 49 TTABVUE 396.
Opposition Nos. 91212680 and 91213587
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Savoring a small snack with Nature Valley Granola Thins;
Most of our tasters like the squares, but wish there was more
to them: The Florida Times Union (Oct. 7, 2010):
Sales representative Angie Tekin said she and her office
crew all enjoyed the granola thins, which she described as
crunchy and a tad crumbly. “They’re thin like a graham
cracker … .”
***
$3.29 for 10 thins[.] 38
Sylvia Says: Nature Valley Granola Thins are just right; St.
Joseph News-Press (St. Joseph, MO) (July 3, 2010):
Boxes of 10 thins are sold nationwide for a suggested retail
price of $3.59.39
If you need some crunch; Crispy Homemade Crackers add
a Little Snap to dishes; The Record (Bergen County, NY)
(May 1, 2002):
Soup and crispy, savory crackers … Homemade crackers
taste fresher than anything from a factory, and when you
make them yourself, you choose the quality of ingredients
that go into them.
Herbed sourdough thins[.]40
Something for every taste; The Fresno Bee ((Fresno, CA)
(July 22, 2001):
They even have garlic almonds and lots of other almond
products, like nut thins, a cracker made from almonds.41
Health on wheels; Loading vehicle with the right stuff
makes trip more fulfilling; The Gazette (Colorado Springs,
CO):

38 Exh. B Frank Decl., 49 TTABVUE 399.
39 Exh. B Frank Decl., 49 TTABVUE 402.
40 Exh. B Frank Decl., 49 TTABVUE 432.
41 Exh. B Frank Decl., 49 TTABVUE 436.
Opposition Nos. 91212680 and 91213587
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First stop, the pretzel rack. A connoisseur’s selection: old-
fashioned, sourdough, thins, rods, twists. Don’t forget to
pick up a jar of mustard for dunking.42
Nature Valley Granola thins (Candy Industry, February
2012):
An indulgent 380-calorie granola snack, Nature Valley
granola thins are available in both dark chocolate and dark
chocolate peanut butter. The thins are 100% natural, made
with delicate, crispy toasted granola and dark chocolate. 43
Many additional newspaper and magazine articles in the record refer to
trademarks containing the term “thins,” with “thin” in initial capitalization and with
an additional term to identify a material aspect of the product. See, for example, the
following representative articles:
The Stacy’s Brand Introduces New Line of Pretzel Thins,
(Entertainment Close-up, Feb. 10, 2014):
Building on its offering of delicious pita and bagel chips,
the Stacy’s brand on February 5 introduced Stacy’s Pretzel
Thins a new line of baked snacks.
According to a release, combining a classic pretzel flavor
with a thin and crispy texture, Stacy’s Pretzel Thins offer
a fun and tasty twist on everyday snacking.44
Blue Diamond Artisan Nut Thins, (Nutraceuticals World,
June 2013):
Blue Diamond … has introduced Artisan Nut Thins, a
wheat and gluten-free cracker crafted with almonds, brown
rice and seeds.45

42 Exh. B Frank Decl., 49 TTABVUE 440.
43 Exh. B Frank Decl., 49 TTABVUE 498.
44 Exh. C Frank Decl., 49 TTABVUE 488.
45 Exh. C Frank Decl., 49 TTABVUE 472.
Opposition Nos. 91212680 and 91213587
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Frito-Lay Debuts Tostitos Thins Tortilla Chips (Food &
Beverage Close-Up, May 9, 2012):
To celebrate the introduction of Tostitos Thins tortilla
chips, the latest addition to the Tostitos family … .46
Consumers go for recycled packaging (Official Board
Markets February 19, 2005):
The consumers of Nut[ ] Thins crackers … .47
Recipes
Opposer’s contributions to the record also contain recipes, or references to recipes,
for “almond thins,” “brownie thins,” “chocolate-mint thins,” “lemon thins” and “mint
thins.”48
Opposer’s Evidence of Use of “Thins” By Applicant, its Consumers and Others
Email to Applicant dated January 10, 2008:
“I’m down to my last 2 thins and buy 8 bags at a time so
please respond A.S.A.P.”49
Applicant’s advertising:
“[T]hey are the best thin since sliced bread.”50
● Applicant used “Corn Thins” in the same typeface “and
rendering”51 as the rest of the phrase “Delicious Golden
Corn Thins With Real Flavoring” on one version of
Applicant’s packaging.52

46 Exh. C Frank Decl., 49 TTABVUE 35.
47 Exh. C Frank Decl., 49 TTABVUE 75.
48 Exh. 51 Rausa Decl., 48 TTABVUE 215.
49 Exh. 7 Madrid Decl., 50 TTABVUE 153.
50 Exh. 7 Madrid Decl., 50 TTABVUE 4.
51 Opposer’s Br. at 9, 47 TTABVUE 10.
52 Exh. 7 Madrid Decl., 49 TTABVUE 1365, 50 TTABVUE 134.
Opposition Nos. 91212680 and 91213587
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● Applicant’s employee Madelein Anderson, Marketing
Manager, in one email dated September 15, 2013, provided
nutrition information as “23 Cal per Corn Thin” and
“Calories per slice (per Corn Thin).”53
● Applicant’s employee Anitha Velkur, “Customer Service,”
and Charlotte Marbus, “Account Executive – North
America,” informed customers in emails dated August 10,
2011 and May 27, 2009 that “Corn and Rice Thins,” “Rice
and Corn Thins,” and “Corn & Rice Thins” were available
at various locations.54
● Ms. Anderson, “Marketing Manager,” in an email dated
December 20, 2010, informed a customer that “a peanut
butter flavored Corn Thin” was not yet available.55
● Applicant’s advertising states, “1 Corn Thin” and “1 Rice
Thin” both have “¼ of the calories of one slice of white
bread” and that it sells “a Rice Thin.”56
● Consumer references to “corn thins” as: “your delicious
corn thins,” “the corn thins you donated,” “your sample
corn thins,” “instead of reaching for some chips, I grab a
corn thin,” “I couldn't wait to try out this corn thin because
I love food with sesame seeds in them whether it's a bagel,
crackers or corn thins!” “original and flavored corn thins,”
“it’s fun to experiment with toppings on a whole corn thin,”
“I couldn’t wait to try out this corn thin,” “I love these corn
thins,” “Real Foods corn thins,” “[i]f you are wondering
what a corn thin is, think rice cake but thinner,” “if there
was a way for me to sample your corn thins,” “where are
the corn thins available in New York state?” and “your corn
thins are the best.”57
● Wholesaler communications with Applicant as: “Thank
you for your donation of 250 samples of corn thins,” “your
corn thins product,” “I would like to sell corn thins,” “I am

53 Exh. 7 Madrid Decl., 50 TTABVUE 190, 192.
54 Exh. 7 Madrid Decl., 50 TTABVUE 125, 154.
55 Exh. 7 Madrid Decl., 50 TTABVUE 162.
56 Exh. 7 Madrid Decl., 50 TTABVUE 138-151.
57 Exh. 7 Madrid Decl., 49 TTABVUE 1367-69, 50 TTABVUE 15, 21, 26, 31, 43, 100, 158, 169-
70.
Opposition Nos. 91212680 and 91213587
- 22 -
a gourmet shop and interested in carrying your corn thins,”
“We order corn thins from Azure foods,” “I’m interested in
purchasing the corn thins for my store,” “the sesame corn
thins,” “organic rice thins,” “your corn thins,” “BBQ or
Cheese flavored corn thins,” “flavored corn thins,” “samples
of your corn thins,” “Original corn thins flax and soy corn
thins multigrain corn thins sesame corn thins whole grain
rice thins,” “your corn thin products,” “flavors of corn
thins,” “we found the rice thins a good sub for bread,” and
“I will look for the rice thins.”58
Registrations on the Principal Register by Others59
● Reg. No. 3870613 for the mark BLUE THINS, registered
on November 2, 2010, for “cookies, biscuits, crackers.”
THINS is disclaimed.60
● Reg. No. 4043300 for the mark NEWTON’S FRUIT
THINS, registered on Oct. 18, 2011, for “cookies.” FRUIT
THINS disclaimed.61
● Reg. No. 4566507 for the mark CANTINA THINS,
registered on July 15, 2014, for “chips, namely, tortilla
chips.” THINS is disclaimed.62

58 Exh. 7 Madrid Decl., 49 TTABVUE 1274, 50 TTABVUE 103, 106, 108, 110, 112, 114, 116,
119-21, 127, 131, 133, 135, 179, 174.
59 Two registrations in the record have limited probative value; THINS is not part of the
COCOTHIN and Design mark, Exh. 82 Rausa Decl., 49 TTABVUE 194, and Reg. No. 2863802
for EMMA’S THINS is not a live registration. Exh. 67 Rausa Decl., 49 TTABVUE 528.
60 Exh. 65 Rausa Decl., 49 TTABVUE 522.
61 Exh. 54 Rausa Decl., 49 TTABVUE 276.
62 Exh. 50 Rausa Decl., 49 TTABVUE 208.
Opposition Nos. 91212680 and 91213587
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Applicant’s Evidence
Registrations by Others63
The marks in the following live Principal Register registrations incorporate the
term “thins,” are not based on Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f),
and do not include a disclaimer of the term THINS: 64
Mark Reg.
Number
Goods Registration
Date
Disclaimer
BAKED POTATO
THINS
2883979 Potato—based
snack foods,
namely potato
crisps
September 14,
2004
Baked potato
FALAFEL THINS 4050610 Wheat, corn,
fava beans and
chick peas
based snack
chips
November 1,
2011
Falafel
GARDEN CHICKEN
THINS
1590093 Breads,
pastries,
biscuits, cakes,
snack food
products,
namely,
crackers
April 3, 1990 Chicken

4144043 Nut-based
snack foods
May 15, 2012 “PB”
“Peanut
Butter
Crackers”
GOURMET THINS 1339385 Crisp bread June 4, 1985 None

4144045 Nut-based
snack foods
May 15, 2012 “PB”
PITA THINS 1982930 Flat bread June 25, 1996 Pita
SANDWICH THINS 3637950 Bread June 16, 2009 Sandwich

63 We have not included those registrations for marks which are displayed as a single term,
such as QTHINS, WATERTHINS and BARKTHINS because they would not likely be subject
to a disclaimer requirement, given the USPTO practice of not requiring disclaimers of parts
of compound or unitary marks. See TRADEMARK MANUAL OF EXAMINING PROCEDURE
(“TMEP”) § 1213.05 (Jan. 2017).
64 Exh. 9 Bhatt Decl., 55 TTABVUE 40-68.
Opposition Nos. 91212680 and 91213587
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Mark Reg.
Number
Goods Registration
Date
Disclaimer
STONED WHEAT
THINS
1718484 Crackers September 22,
1992
Stoned
wheat
VEGETABLE
THINS
1244724 Crackers July 5, 1983 Vegetable
WHEAT THINS 1022799 Crackers October 14,
1975
Wheat

See also the following live registrations in the record, which demonstrate the use
of “thins” in connection with other food products:
Mark Reg.
Number
Goods Registration
Date
Disclaimer
CINNAMON THIN 4250188 Bakery goods November 27,
2012
Cinnamon
COUNTRY THINS 4094572 Bakery
products
January 31,
2012
None
GRILLIN THINS 4013885 Bread,
namely, buns
and rolls
August 16,
2011
Grilling
PITA THINS 198293065 Flat bread June 25, 1996 Pita
POCKET THINS 4126741 Bakery goods April 10, 2012 Pocket
SANDWICH THINS 3637950 Bread June 16, 2009 Sandwich
SWEET THINS 1926608 Baked goods;
namely, cakes
and cookies
October 10,
1995
Sweet

4151778 Candy;
chocolate;
cookies
May 29, 2012 None

4339742 Coffee based
candy
May 21, 2013 Coffee

In addition, Supplemental Reg. No. 4259364 for the standard character mark
BAGEL THINS, for “bakery products, not including cookies,” which registered on

65 The PITA THINS and the SANDWICH THINS registrations are repeated because they fall
into both groups of registrations.
Opposition Nos. 91212680 and 91213587
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December 11, 2012, is in the record. BAGEL is disclaimed in this registration,
meaning that BAGEL was considered a generic term while THINS was not
considered as a generic term, and was considered capable of becoming a source
indicating term.66 See TMEP § 1213.03(b).
Roberts Declaration67
The declaration of Jessie Roberts, former Examining Attorney and Administrator
at the USPTO, challenges many statements in the Frank declaration.68 Of note,
however, are the results of Ms. Roberts’ search on the Google search engine for “corn
thins” (but not for “rice thins”) which she discusses in her declaration.69 From her
review of the first ten pages of the Google search results, which are submitted with
her declaration, she states that 78 references of the first 100 are to Applicant’s
goods.70 This claim is exaggerated because several references appear to be

66 Exh. 73, Rausa Decl., 48 TTABVUE 686.
67 Roberts Decl., 38 TTABVUE 9.
68 Ms. Roberts offers legal opinions or legal conclusions in her declaration. We do not consider
any legal opinions or conclusions proffered by Ms. Roberts because legal determinations are
solely within the province of the Board. See Fed. R. Evid. 702 (“A witness who is qualified as
an expert … may testify in the form of an opinion or otherwise if: (a) the expert’s scientific,
technical, or other specialized knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue.”).
69 Roberts Decl. ¶ 5, 38 TTABVUE 3.
70 Ms. Roberts states at ¶ 15 of her declaration:
Of the remaining twenty-two, fourteen presented use of the
phrase as a generic term at noncommercial sites, such as, recipe
sites and health or nutritional analysis sites that are of little or
no probative value …; three were ambiguous as to whether they
were referring to Real Foods’ product or not; three appeared to
be use of the term as a product identifier by other entities which,
if in use in the United States, would go to infringement rather
than descriptiveness or genericness; and I was unable to access
the remaining two referenced sites. As an Examining Attorney,
I would have been highly persuaded that these search results
Opposition Nos. 91212680 and 91213587
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duplicative. Other references are from foreign websites. In addition, we are not privy
to the algorithm by which Google selects and displays the results of a search, and we
cannot simply presume that the order of search results has trademark significance.
Ms. Roberts’ search results, however, do exhibit several uses of “corn thins” to identity
certain goods. See, for example, “what brocho do you make on corn thins?”
(www.needanetzah.com); “The Berachot Site – I believe corn thins and soy or crisps
are made in such a way that the grains …” (www.berachot.org); “Homemade ‘corn
thins’ – Previously I have assumed that making corn thins at home would be
impossible” (cookingwithandwithout.com); “Sainsbury’s Dark Chocolate Corn Thins
Review – the taste of dark chocolate [–] these corn thins have the flavor”
(www.newproductreviews.com); and “Christmas Corn Thins – All you need are Real
Food corn thins[,] melted chocolate, sprinkles” (gfreekid.com).
Applicant’s Teflon Survey
Sarah Butler, at Applicant’s request, conducted an online genericness survey for
CORN THINS (but not RICE THINS) with a nationwide sample of adults aged 18 or
older who were past or prospective purchasers of popped corn cakes. The survey was
designed as a Teflon survey to evaluate the extent to which relevant consumers view
CORN THINS as a brand name for a product.71 Of the 221 qualified respondents

supported Real Foods’ use of CORN THINS as a source
identifying trademark.
38 TTABVUE 9.
71 Ms. Butler instructed participants on the difference between a brand name and a common
name and gave them a “mini test” to ensure their understanding. Only those who correctly
answered questions in the “mini-test” were eligible to complete the survey. Id. at 24.
Opposition Nos. 91212680 and 91213587
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surveyed, all of whom were past or future popped corn cake purchasers, 52 percent,
or a total of 114 respondents, indicated that CORN THINS was a brand name, 32
percent indicated it was a common name,72 and 16 percent indicated they did not
know or had no opinion.73 For the 84 percent of respondents that had an opinion, 62
percent indicated that CORN THINS was a brand name, rather than a common name
and 38 percent indicated that CORN THINS was a common name.74
Dr. David Stewart, one of Opposer’s witnesses, testified that Ms. Butler’s survey
“suffers serious and fatal flaws in both its design and in the analysis of its results.” 75
In addition, Opposer maintains that the Fourth and Seventh Circuits recognize that
Teflon surveys have limited probative value in the context of common terms already
in use, citing Hunt Masters, Inc. v. Landry’s Seafood Restaurant Inc., 240 F.3d 251,
57 USPQ2d 1884 (4th Cir. 2001); Miller Brewing Co. v. G. Heileman Brewing Co., 561
F.2d 75, 195 USPQ 281, 283 (7th Cir. 1977); and Miller Brewing Co. v. Jos. Schlitz
Brewing Co., 605 F.2d 990, 203 USPQ 642, 644 (7th Cir. 1979).76 The Federal Circuit,
however, in Princeton Vanguard, 114 USPQ2d at 1834, instructed the Board on
remand to “give appropriate consideration to the proffered” Teflon surveys in the trial

72 Participants were told what a common name is. Specifically:
CHEESE NIPS is a brand name whereas CRACKERS is a
common or generic name for a type of snack food. SUN CHIPS
is a brand name whereas CHIPS is a common or generic name
for a type of snack food.
Butler Decl. at ¶ 20, 33 TTABVUE 10.
73 Butler Decl. at ¶ 30, 33 TTABVUE 12.
74 Butler Decl. at ¶ 31, 33 TTABVUE 12.
75 Stewart Decl. at ¶ 15, 49 TTABVUE 220.
76 Opposer’s Supplemental Brief at 9 - 11, 72 TTABVUE 10-11.
Opposition Nos. 91212680 and 91213587
- 28 -
record, including a Teflon survey submitted by our Opposer, in that case, but now
arguing against consideration of our Applicant’s Teflon survey. Regardless of
Opposer’s challenges to the Teflon survey in this case, we have not considered the
survey results because, as will be demonstrated, it is not necessary for the disposition
of this case.
Analysis
“Genericness is a fact-intensive determination and the Board’s conclusion must be
governed by the record which is presented to it.” In re Country Music Ass’n Inc., 100
USPQ2d 1824, 1832 (TTAB 2011); In re Tennis Industry Ass’n, 102 USPQ2d 1671,
1680 (TTAB 2012). We initially analyze the component terms of the applied-for
composite marks individually. As required by Princeton Vanguard and Marvin Ginn,
however, we ultimately evaluate genericness of each proposed mark as a whole.
Regarding the terms “rice” and “corn” in the proposed marks, they appear in the
respective identifications of goods and identify the key or primary ingredients of the
goods. “Corn” is defined as a “grain,”77 and “rice” is defined as “small white or brown
grains that come from a Southeast Asian plant and that are used for food.”78 Thus,
the terms RICE and CORN in the applied-for marks are, respectively, the generic

77 We take judicial notice of this definition from Merriam Webster Dictionary, accessed at
http://www.merriam-webster.com/dictionary/com. The Board may take judicial notice of
dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ
594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online
dictionaries that exist in printed format or have regular fixed editions. In re Red Bull GmbH,
78 USPQ2d 1375, 1377 (TTAB 2006).
78 Merriam Webster Dictionary, accessed at http://www.merriam-webster.com/dictionary/rice.
We also take judicial notice of this definition.
Opposition Nos. 91212680 and 91213587
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names of the key ingredients of the respective goods. Applicant has not contended
otherwise.
With regard to the public’s understanding of the term “thins,” we find that there
is evidence of the term “thins” used by consumers of Applicant’s goods to identify
cracker products, and other food products which have a thin cross-section. See, e.g.,
articles submitted with Dr. Frank’s declaration, the uses of “thins” by Applicant and
Applicant’s consumers, and several of the Google search results submitted by
Applicant’s witness, Ms. Roberts. The record also includes evidence of uses of “thins”
in a generic manner for various cookies. See, e.g., “almond thins,” “brownie thins,”
“chocolate-mint thins,” “lemon thins” and “mint thins.”79 However, there is ample
evidence of the use of “thins” as a source indicator. See, e.g., Wheat Thins, Nabisco
Vegetable Thins, Sesmark Sesame Thins, Gratify Sea Salt Thins and Coffee Thins.80
Thus, we are not persuaded that the present record establishes by a preponderance
of the evidence that “thins” is a generic term for rice cakes or popped corn cakes.
While it is widely used for crackers, snack foods and other food products, many of
these uses are in the form of composite terms which the users apparently intend to
serve the purpose of a mark, and are presented with appropriate capitalization to
indicate use for this purpose. Though the wide use may indicate the scope of
protection for each of these brands to be limited, it does not follow that the use is so
ubiquitous as to render these uses, or Applicant’s, no better than generic.

79 Exh. 51 Rausa Decl., 48 TTABVUE 215.
80 Exhs. C and F Frank Decl., 49 TTABVUE 531, 632 and 611, Exh. 26 and 49 Rausa Decl.,
47 TTABVUE 130-31.
Opposition Nos. 91212680 and 91213587
- 30 -
We now consider the proposed marks as a whole. See Princeton Vanguard, 114
USPQ2d at 1833-34.
The evidence in the record includes a few uses of “Corn and Rice Thins,” “Rice and
Corn Thins,” and “Corn & Rice Thins” by two of Applicant’s employees81, some
consumer references to “corn thins,” some wholesaler uses of “corn thins” and “rice
thins,” and a handful of third party uses of “Rice Thins.” This evidence offered to show
generic use of “corn thins” and “rice thins” is not impressive and fails to persuade us
that either term refers to a genus of goods. Much of the evidence comes from Applicant
rather than from actual purchasers of Applicant’s goods. Further, many of the
instances where Applicant’s consumers refer to “corn thins” and “rice thins” without
initial capitalization are made in the context of a discussion of Applicant’s goods, so
the lower case lettering does not indicate the authors are unaware of a single source
for the goods (“To refresh your memory, in the past, you have donated 8 boxes of 72
sample-sized packages of your delicious corn thins,”82 “Real Foods company makes a
product called Corn Thins. … The flaxseed/soy, sesame, original and flavored corn
thins are gluten free,”83 “Both are great plain or broken to pieces and used for a snack
or dipping, but it’s fun to experiment with different toppings on a whole corn thin. I
contacted Real Foods (the manufacturer) about a minor concern I had with one of the

81 According to Opposer, such uses are generic uses, notwithstanding the use of initial capital
letters, because they are not uses of brand names (the brand names are CORN THINS and
RICE THINS). Opposer’s Br. at 9, 47 TTABVUE 10.
82 49 TTABVUE 1367.
83 50 TTABVUE 21.
Opposition Nos. 91212680 and 91213587
- 31 -
packages I bought,”84 “I also like Real Foods corn thins”).85 Other instances reflect
mixed upper-case and lower-case uses (“’Real Foods has experienced rapid growth
over the last 12 years since the development and launch of its major product line,
Corn Thins, a natural, low-fat crispbread made from popped corn.’ GUILT FREE
FOODS. I am literally in heaven over these corn thins.”).86 The reference in
Applicant’s advertising to “1 Rice Thin” is not strongly indicative of genericness
because the reference can be construed as a reference to Applicant’s product through
a trademark, such as “a Coke” or “a Pepsi.” The uses by wholesalers who are actual
or prospective purchasers are more indicative of genericness, but still equivocal. In
considering this evidence, we weigh it against other evidence demonstrating use of
both “corn thins” and “rice thins” in a prominent position on product packaging, and
uses apart from packaging but with initial capitalization, and we find that Opposer
has failed to demonstrate by a preponderance of the evidence that CORN THINS and
RICE THINS considered as a whole would be perceived by consumers as generic for,
respectively, popped corn cakes and rice cakes. Rather, the evidentiary record
presents a record with mixed uses of CORN THINS and RICE THINS, as well as
THINS, in trademark and non-trademark form. See In re Merrill Lynch, Pierce,
Fenner, and Smith Inc., 4 USPQ2d at 1144 (where “recognition in a substantial
number of publications that the source of the CASH MANAGEMENT ACCOUNT”
was the applicant, the court found that “[t]he mixture of usages unearthed by the

84 50 TTABVUE 26.
85 60 TTABVUE 43.
86 50 TTABVUE 15.
Opposition Nos. 91212680 and 91213587
- 32 -
NEXIS computerized retrieval service does not show, by clear evidence, that the
financial community views and uses the term CASH MANAGEMENT ACCOUNT as
a generic, common descriptive term for the brokerage services to which Merrill Lynch
first applied the term.”); Alcatraz Media, 107 USPQ2d at 1763 (“However, when
considered in conjunction with the testimony of respondent’s competitors, these uses
result in at best a mixed record of use of the phrase both generically and as part of
what appear to be trademarks or trade names. This ambiguous evidence thus fails to
establish that the primary significance of ANNAPOLIS TOURS to the relevant public
is guided tour services of cities, rather than a guided tour service of cities provided
by a particular entity.”). See also, In re America Online, 77 USPQ2d 1618, 1623
(TTAB 2006) (“the evidence of generic use is offset by applicant’s evidence that shows
not only a significant amount of proper trademark use but also trademark
recognition” by third parties).
Opposer’s genericness claim is dismissed in regard to each application.
Mere Descriptiveness and No Acquired Distinctiveness
We next turn to Opposer’s claim that RICE THINS and CORN THINS are merely
descriptive terms for rice cakes or popped corn cakes, respectively, and Opposer’s
claim that Applicant has not provided proof that the term THINS has acquired
distinctiveness.87 Because Applicant has disclaimed the terms “rice” and “corn” and
these clearly are generic terms for goods made of those foods, Opposer must show

87 Opposer has alleged in its amended notice of opposition that Applicant has not shown
acquired distinctiveness in the term THINS.
Opposition Nos. 91212680 and 91213587
- 33 -
that THINS is descriptive and that its combination with the other terms in the
respective applications does not create non-descriptive composites.
Applicant, on the other hand, can rely on a claim of acquired distinctiveness in the
term THINS and/or the two composites, to defeat Opposer’s claim that Applicant’s
mark is merely descriptive, even though the applications were published without
resort to Section 2(f). See Coca-Cola Co. v. Seven-Up Co., 497 F.2d 1351, 182 USPQ
207, 209 (CCPA 1974) (“The first ground of attack, without citation of authority, is
based on appellee’s not having filed its application under Section 2(f) of the Act. The
attack must fail. Because the examiner had never raised a question of descriptiveness
and appellee never considered its mark to be descriptive, there was no reason to have
filed under Section 2(f) or to have amended the application to bring it under that
section”); Perma Ceram Enters. Inc. v. Preco Indus. Ltd., 23 USPQ2d 1134, 1139 n.13
(TTAB 1992) (“Although the application did not include a Section 2(f) claim, the
defense of acquired distinctiveness clearly could have been raised”). In this case,
Applicant pleaded acquired distinctiveness in its amended answers as to the
composite marks. Before considering that defense, we first must consider whether
THINS and the composite marks have been shown to be merely descriptive.
A mark is merely descriptive of goods within the meaning of Section 2(e)(1) if it
forthwith conveys an immediate idea of an ingredient, quality, characteristic, feature,
function, purpose or use of the goods. In re Chamber of Commerce of the U.S., 675
F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); see also, In re Gyulay, 820 F.2d
1216, 3 USPQ2d 1009 (Fed. Cir. 1987). Whether a proposed mark is merely
descriptive is determined in relation to the goods for which registration is sought and
Opposition Nos. 91212680 and 91213587
- 34 -
the context in which the mark is used, not in the abstract or on the basis of guesswork.
In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978); In re Remacle,
66 USPQ2d 1222, 1224 (TTAB 2002). In other words, we evaluate whether someone
who knows what the goods are will understand the asserted mark to convey
information about them. DuoProSS Meditech Corp. v. Inviro Med. Devices Ltd., 695
F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012). A proposed mark need not
immediately convey an idea of each and every specific feature of the goods in order to
be considered merely descriptive; it is enough if it describes one significant attribute,
function or property of the goods. See In re Gyulay, 3 USPQ2d at 1010; In re
H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re MBAssociates, 180 USPQ 338
(TTAB 1973). The determination that a mark is merely descriptive is a finding of fact
and must be based upon a preponderance of the evidence. Princeton Vanguard, 114
USPQ2d at 1830 n.2 (“We agree with the Board that the burden was on Frito-Lay to
prove genericness by a preponderance of the evidence.”).
Where a mark consists of multiple descriptive words, the mere combination of
these words does not necessarily create a nondescriptive word or phrase. In re
Phoseon Tech., Inc., 103 USPQ2d 1822, 1823 (TTAB 2012); In re Associated Theatre
Clubs Co., 9 USPQ2d 1660, 1662 (TTAB 1988). If each component retains its merely
descriptive significance in relation to the goods or services, the combination results
in a composite that is itself merely descriptive. In re Oppedahl & Larson LLP, 373
F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004). However, a combination of merely
descriptive components is registrable as a mark if the combination of terms creates a
mark with a nondescriptive meaning, or a double entendre with one meaning being
Opposition Nos. 91212680 and 91213587
- 35 -
non-descriptive, or if the composite has an incongruous meaning as applied to the
goods or services. See In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382 (CCPA
1968) (SUGAR & SPICE for “bakery products”); In re Shutts, 217 USPQ 363 (TTAB
1983) (SNO-RAKE for “a snow removal hand tool having a handle with a snow-
removing head at one end, the head being of solid uninterrupted construction without
prongs”).
Applicant’s products are popped corn cakes in the CORN THINS application and
rice cakes in the RICE THINS application. We find that a consumer will immediately
understand, when encountering the proposed marks, that a feature or characteristic
of Applicant’s goods is that they are thin in cross section and made primarily of corn
in one instance and rice in the other. “Rice” and “corn,” of course, identify the primary
ingredients of the crispbread or cakes, and are descriptive of the respective goods.
The term “thins” is the pluralized form of “thin,” which characterizes the thickness of
Applicant’s goods. “Thins” in the proposed marks has been transformed into a noun
as evidenced by the addition of the letter “s.” While the record reflects use of “thins”
as a noun by purchasers and others, there is no definition from a traditional
dictionary for “thins” as a noun. However, a “mere change of form of a descriptive
term will not automatically remove it from the descriptive category.” 2 MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION § 11:29 (4th ed. 2017). See also Scholler
Brothers, Inc. v. Hans C. Bick, Inc., 110 USPQ 431, 432-33 (Comm’r Pats. 1956)
(“when ‘Nylon’ is the common name of a fiber and the common name of the principal
ingredient of the finishing bath for treating fabrics and hosiery, and when that
common noun is made into a verb by the addition of ‘ize’ to describe a treatment with
Opposition Nos. 91212680 and 91213587
- 36 -
nylon, it does not assume service mark stature merely because it is registered and
advertised as a service mark”).
In addition, the record reveals “thins” used as a noun in many articles in
connection with thin food products, and by many other producers of food items:
The Florida Times Union (Apr. 4, 2013):
We chose the Fried Oreos with vanilla ice cream ($5.99)
and the Caramel Delight, churro-type tortilla thins dusted
in cinnamon with a caramel dipping sauce ($4.99). The
Oreos resembled four beignets and were hard to put down.
The thins were the better bet for large-group sharing and
were light and crisp.88
Fruit’s popularity on the rise, snack study shows Source:
Daily Herald (Arlington Heights, IL) (Jan. 16, 2013):
Every time I head to the grocery store I see evidence that
snacking is on the rise. On my last trip alone I spotted
snack packs of seasoned nuts, cookie thins and peanut
pretzels on the shelves.89
Everything’s coming up pumpkin, from Pop Tarts to
Pringles to ... air freshener? Pittsburgh Post-Gazette
(Pittsburgh, PA) (Oct. 18, 2012):
If you’d rather wake up to a bagel, Brueggers, Einsteins
and Panera Bread all feature pumpkin varieties this time
of year. So does muffin-maker Thomas’, though its
Pumpkin Spice bagels and bagel thins are a far cry from
the chewy-on-the-outside, fluffy-on-the-inside taste you
love in a fresh bagel hot out of the oven.90

88 Exh. 86, Rausa Decl., 49 TTABVUE 376.
89 Exh. 86, Rausa Decl., 49 TTABVUE 378.
90 Exh. 86, Rausa Decl., 49 TTABVUE 380.
Opposition Nos. 91212680 and 91213587
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Tidbits: Star Tribune (Minneapolis, MN) (Oct. 27, 2011):
There’s a new development in the world of so-called
sandwich thins—very thin rolls, sliced so each can make a
sandwich.91
New batch of cookbooks signals baking season: Daily
Herald (Arlington Heights, IL) (Oct. 12, 2011):
Paging through the book reveals tempting recipes for Mint
Thins and Lemony Chewies alongside advice for decorating
with flair and suggested variations.92
Brown bagging it doesn’t always have to be boring:
Frederick News-Post (Frederick, MD) (Sept. 14, 2011):
To prevent “bread boredom,” Shea suggests swapping
sliced bread for a bagel, pita pocket, sandwich thins or a
wrap.93
Make school lunch from a bag nutritious: The Atlanta
Journal-Constitution (Atlanta, GA) (Aug. 31, 2011):
The new breed of whole-grain sandwich or bagel “thins”
might be a better fit with 100 calories and 5 grams of
fiber.94
A tisket, a tasket ... Putting it all in a gift basket: The Boston
Herald (Dec. 8, 1998):
For the xenophile, there’s the International Seasonal
Selection ($65), which includes popular foods from around
the world. Among them are Pfeffernusse gingerbread,
Biscotti di Natale, ginger thins, Mozart Kugeln and more.95
Nature Valley granola thins: Candy Industry (Feb. 2012):
An indulgent 80-calorie granola snack, Nature Valley
granola thins are available in both dark chocolate and dark

91 Exh. 86, Rausa Decl., 49 TTABVUE 384.
92 Exh. 86, Rausa Decl., 49 TTABVUE 388.
93 Exh. 86, Rausa Decl., 49 TTABVUE 390.
94 Exh. 86, Rausa Decl., 49 TTABVUE 391.
95 Exh. 86, Rausa Decl., 49 TTABVUE 446.
Opposition Nos. 91212680 and 91213587
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chocolate peanut butter. The thins are 100% natural, made
with delicate, crispy toasted granola and dark chocolate.96
“Thins” has been used in connection with food products that are thin in shape, and
which are touted for being thin, but often with capitalization and with apparent
intent that the use be perceived as part of a composite mark. The term has been used
in connection with (i) cracker products (e.g., “Keebler® Town House® Pretzel Thins
Oven Baked Crackers Sea Salt,” “Introducing New Town House Pretzel Thins. Classic
baked pretzel taste in a thin, crispy cracker perfectly seasoned with sea salt.”);97 (ii)
thinly-sliced breads (e.g., Bagel Thins and Sandwich Thins Rolls (“The benefits of
whole wheat and a delicious soft pita-style flatbread – what’s more to love?”)); (iii)
candies (e.g., barkTHINS snacking chocolate and COFFEE THINS); and (iv) cookies
(e.g., Anna’s Ginger Swedish Thins).98
Even if we assume that the uses on other products are intended to be perceived as
marks, or may have acquired distinctiveness, the ubiquity of use for food products
illustrates the term “thins” is not inherently distinctive for thin food products. This
evidence demonstrates that the term “thins” describes a common characteristic of
each of these products, i.e., its thin shape.
Applicant argues that it chose CORN THINS and RICE THINS to “convey the
lightness of the product and its low caloric content, and therefore its consistency with
a healthy lifestyle”; and that each asserted composite mark presents a “double

96 Exh. 86, Rausa Decl., 49 TTABVUE 498.
97 Exh. F Frank Decl., 49 TTABVUE 624.
98 In our descriptiveness inquiry, we consider the use of “thins” in connection with breads and
cookies, as the parties have done.
Opposition Nos. 91212680 and 91213587
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entendre [that] compel[s] a finding of suggestiveness because where a mark has two
meanings, one descriptive and the other suggestive, then the mark can be called
suggestive, as the mark is not ‘merely’ descriptive.”99 We find it unlikely that
consumers will understand “thins” in the applied-for terms as describing the
lightness of the goods and the low caloric content, and Applicant has not submitted
persuasive evidence that established such an understanding. As for the asserted
double entendre, we find this interpretation of the marks unlikely, especially in light
of the evidence of use of “thins” by other manufacturers on cookies, which are not
known for having a low caloric content, and other snack foods such as pretzels, even
chocolate-coated pretzels. Applicant’s advertising and packaging focusing on the
healthful and dietetic benefits of its cakes do not persuade us otherwise.100 Moreover,
there is no persuasive evidence in the record that confirms consumer comprehension
of Applicant’s asserted double entendre.101

99 Applicant’s summary judgment brief at 12, 30 TTABVUE 14.
100 See Exh. A Pels Decl., 31 TTABVUE 15, 16 17, 23, 86.
101 The packaging for SESMARK Rice Thins states, “[l]ight, crisp and delicate, Rice Thins are
gently seasoned … Rice Thins are a flavorful, low fat alternative to most chips and crackers,
so enjoy them without guilt.” Exh. F Frank Decl., 49 TTABVUE 633. Additionally, the
webpage at weightloss.answers.com (“Make Sandwich Thins Your New Bread”) provides:
Sandwich thins are the new products on the bread market. They
are sleek, round, flat breads that put a healthy spin on getting
your good carbs. Sandwich thins make it easy for those watching
their weight to get in their required number [of] carbs without
having to overdo it. There are a number of different brands each
offering something slightly different in both taste and nutrition.
Sandwich thins are a great healthy alternative to regular
hamburger buns and dinner rolls.
Exh. F Frank Decl., 49 TTABVUE 621. Neither of these, or similar, statements, convey the
double entendre advanced by Opposer, and do not reflect appreciation on the consumer’s part
of the double entendre.
Opposition Nos. 91212680 and 91213587
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In view of the foregoing, and because each component of the applied-for composites
retains its merely descriptive significance in relation to the claimed goods, each
combination results in a composite that is itself merely descriptive. See In re
Oppedahl, 71 USPQ2d at 1371. We therefore find the terms “corn thins” and “rice
thins” are merely descriptive of a feature of Applicant’s respective goods.
We turn, then, to Applicant’s showing of acquired distinctiveness. It is Applicant’s
burden to establish that its proposed marks have acquired distinctiveness. Yamaha
Int’l Corp. v. Hoshino Gakki Co. Ltd., 6 USPQ2d 1001, 1006 (Fed. Cir. 1988) (“As this
court observed … the ‘one seeking to register [the proposed trademark] bears the
burden of showing secondary meaning under Section 2(f).’”).102
Applicant points out the following to demonstrate that its applied-for marks have
established acquired distinctiveness in the term THINS:
● Applicant introduced CORN THINS and RICE THINS
into the United States market in 2000 and 2007,
respectively;103
● Applicant’s goods can be found in grocery stores such as
Whole Foods, Wegmans, Hannafords Supermarket and
Stop & Shop;
● Applicant has the second largest share of the combined
popped corn and rice cakes market in natural food stores
selling food and snack products made from all natural (not
artificial or genetically modified) ingredients, in the
U.S.;104

102 Bracketed material in original text.
103 Pels Decl. ¶ 13, 31 TTABVUE 5.
104 Pels Decl. ¶ 21, 31 TTABVUE 10; Movitz Decl. ¶ 14, 29 TTABVUE 4-5. Mr. Movitz’s
declaration was filed under seal. The material attributed to Mr. Movitz is from Applicant’s
brief which was not filed under seal.
Opposition Nos. 91212680 and 91213587
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● Applicant’s CORN THINS and RICE THINS products
hold the second largest combined popped corn and rice cake
market share in “naturals” food aisles of mainstream
supermarkets and drugstores;105
● Applicant’s CORN THINS and RICE THINS products
also comprise the third largest market share of those rice
and popped corn cake products sold in specialty gourmet
food stores;106
● Sales of Applicant’s CORN THINS and RICE THINS
products have been in the millions;107 and
● Thousands of visitors each year visit Applicant’s website,
Applicant has over 16,000 Facebook “likes” and its
products have been featured on several blogs.108
Applicant also relies on the results of Ms. Roberts’ search on the Google search
engine; for the same reason we found above that the results have limited probative
value on the question of genericness, i.e., that they include legal opinions or legal
conclusions, include duplicative references as well as references from foreign
websites, and are dependent on the algorithm used by the Google search engine, to
which we are not privy, we find that they have little probative value on the question
of acquired distinctiveness.
Applicant admits that it “does not have a large marketing budget,” and that it
relies primarily on giving product samples to groups and individuals that focus on
healthy or gluten-free lifestyles and donating samples for events that encourage such
lifestyles. Applicant has advertised in publications directed to consumers living

105 Id.
106 Id.
107 Pels Decl. ¶ 5, 31 TTABVUE 3; Pels Supplemental Decl. ¶ 2, 28 TTABVUE 2.
108 Pels Decl. ¶ 25, 31 TTABVUE 11.
Opposition Nos. 91212680 and 91213587
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gluten-free or healthy lifestyles, such as the Celiac Disease Foundation Newsletter
and Today’s Dietitian Magazine.109 No information, however, is in the record
regarding the distribution of, or the frequency of advertising in, these publications.
There is no evidence of any other competitor currently using CORN THINS in the
United States, although Mr. Pels stated in his declaration that one of Applicant’s
competitors had secured U.S. trademark registrations on the Principal Register for
both CORN THINS and RICE THINS for corn cakes and rice cakes, respectively; and
that those registrations were cancelled by default judgment in a cancellation
proceeding initiated by Applicant.110 There is also evidence of use by “Sesmark” of
“Rice Thins” and “Savory Rice Thins” for “a flavorful, low fat alternative to most chips
and crackers.”111
Opposer counters Applicant’s evidence with Dr. Cunningham’s online survey,
which sought to determine whether CORN THINS112 had acquired distinctiveness.113
Dr. Cunningham asked participants whether they associate “corn thins” with only
one company, more than one company, no company or “don’t know.”114 She included
as participants only those “who had purchased crispbread/crispbread slices and/or
crackers/flatbread in the previous three months or who planned to purchase
crispbread/crispbread slices and/or crackers/flatbread in the following three

109 Pels Decl. ¶ 23; 31 TTABVUE 10-11.
110 Pels Decl. ¶ 18, 31 TTABVUE 8-9.
111 Exh. 12 Rausa Decl., 47 TTABVUE 87; Exh. F Frank Decl., 49 TTABVUE 633.
112 CORN THINS has been used longer, and has had greater sales, than RICE THINS.
113 Cunningham Decl. ¶ 5, 49 TTABVUE 372
114 Exh. 1 Cunningham Decl., 49 TTABVUE 678-80.
Opposition Nos. 91212680 and 91213587
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months.”115 The survey demonstrated that a net of 10.3% of respondents perceived
CORN THINS as associated with one company.116 When considering only those
respondents who had purchased or planned to purchase crispbreads (as opposed to
crackers/flatbreads), the results demonstrated 10.9% of such persons associated
CORN THINS with one company.117 A little more than a half of those who indicated
that they associated CORN THINS with only one company specified the name of a
company other than Applicant as that company.
Applicant criticizes Dr. Cunningham’s selection of survey participants, stating
that the wrong purchasers were surveyed. According to Applicant’s witness, Mr.
Poret, “The large majority of the respondents answered that they do not purchase
crisp bread/crisp bread slices, and almost certainly qualified for the survey only
because they purchase some type of ‘cracker’ that has little or no relation to the
relevant product category. The survey entirely failed to narrow the universe to
purchasers of the correct product type, which could easily explain why most
respondents associated CORN THINS with no company or did not know.”118 Dr.
Cunningham responds:
I defined the universe for this survey as all those
individuals who had purchased or might purchase in the
future products in the broad category of “crispbread slices,”
which in my opinion would reasonably include such
products as crisp breads, crackers, and flatbreads. By
defining the universe as only those people that would have
or had purchased “crispbread/crispbread slices” the survey

115 Exh. 1 Cunningham Decl., 49 TTABVUE 679-80.
116 Cunningham Decl. ¶ 12, 49 TTABVUE 674, 681.
117 Cunningham Decl. ¶ 12, 49 TTABVUE 674.
118 Poret Decl. ¶ 16, 34 TTABVUE 6.
Opposition Nos. 91212680 and 91213587
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universe would have been under[-]inclusive. No evidence
was given that buyers of crispbread slices were exclusively
buyers or potential buyers of this product; rather, by
including all the customers and potential customers of the
entire product category, the universe was properly defined.
The survey therefore included all individuals who
purchased or planned to purchase crispbreads, crispbread
slices, crackers and flatbreads.119
We find that the survey suffers because it included purchasers of “crackers,”
rather than purchasers of “rice cakes,” and “corn cakes.” “Cracker” is defined as “a
dry thin crispy baked bread product that may be leavened or unleavened.”120 A
“cracker” hence may include goods that differ in ingredient composition, purpose, and
use from Applicant’s “rice cakes” and “popped corn cakes.”
Opposer also points us to a prior unpublished Board decision in which the Board
considered the term BAGEL THINS for “bakery products, not including cookies” and
found the term to be descriptive and without acquired distinctiveness (but not
generic). In Re Grupo Bimbo, S.A.B. DE C.V., Opp. No. 77798364, 2012 WL 3561622
(TTAB August 10, 2012). The Board added that “Bagel Thins” “may be an apt name
for thinly-sliced bagels.” Nonetheless, our determination in this case must be based
on the evidence in this record. A non-precedential decision in an ex parte appeal
involving a different mark and different goods, issued prior to the Federal Circuit’s
most recent decision on genericness, is not helpful to our analysis of this case at this
time.

119 Cunningham Decl. ¶ 8, 49 TTABVUE 673.
120 http//www.merriam-webster.com/dictionary/cracker, November 20, 2012 Office Action,
application Serial No. 79111074, TSDR 10.
Opposition Nos. 91212680 and 91213587
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Upon careful consideration of all the evidence in the record, and the arguments of
the parties, we find that Applicant’s applied-for marks are highly descriptive of a
feature or characteristic of the goods, and that Applicant has not demonstrated that
its applied-for marks have acquired distinctiveness. Of particular concern to us is the
fact that Applicant has done little or no advertising of CORN THINS or RICE THINS.
Further, Applicant’s sales figures, while not insignificant, are not high. The record
demonstrates use of the term “thins” by many third parties; thus the use of THINS
is not limited to Applicant. The terms “rice” and “corn,” as discussed earlier in our
opinion, are generic names for crispbreads made primarily of either rice or corn. Also,
the Cunningham survey, despite its problems, still has some probative value in
demonstrating limited recognition of CORN THINS as a mark. Roselux Chemical Co.
v. Parsons Ammonia Co., 299 F.2d 855, 132 USPQ 627 (CCPA 1962) (10% of survey
sample which gave trademark significance to a descriptive term held insufficient
proof of secondary meaning). Opposer’s claim that Applicant’s applied-for marks are
merely descriptive and that Applicant has not established acquired distinctiveness in
either the term THINS, or, more properly, in the terms CORN THINS or RICE
THINS, is sustained.
Terms Are So Highly Descriptive - Incapable Of Acquiring Distinctiveness
In some very unusual cases, a phrase or slogan can be so highly laudatory or
descriptive as to be incapable of acquiring distinctiveness as a trademark. See In re
Boston Beer Co., 198 F.3d 1370, 53 USPQ2d 1056, 1058-59 (Fed. Cir. 1999) (“The Best
Beer in America,” although not the generic name of the goods, is such a commonly
used laudatory phrase that it is incapable of registration as a trademark). This is not
Opposition Nos. 91212680 and 91213587
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one of those cases. On this record, we cannot find that “corn thins” and “rice thins”
are so highly descriptive of the qualities of Applicant’s goods that they could not
function as a trademark to distinguish Applicant’s goods and serve as an indication
of origin. There is limited third-party use of “rice thins” and “corn thins.” The record
before us does not support a finding that Applicant’s proposed marks are so highly
descriptive that they are incapable of acquiring distinctiveness. Opposer’s claim on
this point is therefore dismissed.
Decision: Applicant’s motions to amend are granted, and the operative
identifications of goods in this proceeding are “crispbread slices predominantly of
corn, namely popped corn cakes” for the CORN THINS application, and “crispbread
slices primarily made of rice, namely rice cakes” for the RICE THINS application.
Opposer’s claims of genericness and incapability of acquiring distinctiveness as a
trademark are both dismissed.
The oppositions to the registration of Applicant’s proposed marks CORN THINS
and RICE THINS are sustained on the ground that they are merely descriptive and
have not acquired distinctiveness.