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

Trademark Trial and Appeal Board

Sep 24, 2019

91213587 (T.T.A.B. Sep. 24, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 24, 2019

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. 91213587

ON REMAND
_______

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, Kuhlke and Mermelstein,
Administrative Trademark Judges.1
Opinion by Zervas, Administrative Trademark Judge:
Real Foods Pty. Ltd. (“Applicant”) filed the following two applications on the
Principal Register for standard character marks:

1 Judge Masiello who participated in our original decision in this consolidated opposition
proceeding has retired from Federal service. Judge Kuhlke has been substituted for Judge
Masiello.
Opposition Nos. 91212680 and 91213587
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● 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
On February 21, 2017, the Board issued a decision (the “prior decision”) in which
it inter alia granted Applicant’s pending motion to amend the identification of goods
in the CORN THINS application from “crispbread slices predominantly of corn” to
“crispbread slices predominantly of corn, namely popped corn cakes” and granted
Applicant’s motion to amend the identification of goods in the RICE THINS
application from “crispbread slices primarily made of rice” to “crispbread slices
primarily made of rice, namely rice cakes.” Applicant explained, “after

2 Application Serial No. 79111074 is the subject of Opposition No. 91213587.
3 Application Serial No. 85820051 is the subject of Opposition No. 91212680.
4 6 TTABVUE.
Opposition Nos. 91212680 and 91213587
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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).”5 Applicant is an Australian company and the application for CORN
THINS is based on an Australian registration. In granting the motion, the Board
cited Trademark Rule 2.71(a), 37 C.F.R. § 2.71(a), and referenced Opposer’s
statement in its brief that “the evidence and admissions in the record indisputably
show that popped corn and rice cakes are kinds of crispbread.” In addition, the Board
dismissed Opposer’s claims of genericness and incapability of acquiring
distinctiveness as a trademark, and sustained the oppositions on the ground that the
proposed marks are merely descriptive and have not acquired distinctiveness.
On appeal, the Court of Appeals for the Federal Circuit affirmed the Board’s
conclusions that (i) the marks are highly descriptive (“the TTAB properly considered
the proposed marks in light of the record and adequately supported its finding that
Real Foods’ marks are highly descriptive”), Real Foods Pty Ltd. v. Frito-Lay N. Am.,
Inc., 906 F.3d 965, 128 USPQ2d 1370, 1377 (Fed. Cir. 2018), and (ii) Applicant has
not demonstrated acquired distinctiveness (“the TTAB properly determined that Real
Foods’ proposed marks have not acquired distinctiveness.).” Id. at 1379. The court,
however, disagreed with the Board’s choice of genus in deciding Opposer’s
genericness claim. The court stated:
While recognizing that the amendment narrowed the
identification of goods, the TTAB failed to take into account
in its determination of the genus under step one that the

5 30 TTABVUE 10.
Opposition Nos. 91212680 and 91213587
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Applications show that popped corn cakes and rice cakes
are types of crispbread slices, which, in turn, the record
defines as types of crackers. See Frito-Lay, 2017 TTAB
LEXIS 82, 2017 WL 914086, at *3 (relying on Frito-Lay’s
concession that “the record indisputably show[s] that
popped corn and rice cakes are kinds of crispbreads” to
grant the Motion to Amend (emphasis added) (internal
quotation marks and footnote omitted)); see also J.A. 94
(defining “crispbreads” as “plain dry unsweetened
cracker[s] made from crushed grain”), 169 (defining, in an
online dictionary, “crispbread” as “[a] kind of flat, dry bread
or cracker”); cf. In re Hotels.com, L.P., 573 F.3d 1300, 1303-
04, 1306 (Fed. Cir. 2009) (relying on dictionary definitions
to define an individual term within a mark).
This was error. As set forth in Real Foods’ Applications
and the Motion to Amend, see J.A. 279, corn cakes and rice
cakes are the species, not the genus, see Two Pesos, 505
U.S. at 768. In its Opinion, the TTAB failed to provide any
reasoning for its conclusion that the narrowed
identification of goods alone was the appropriate genus to
use in its genericness analysis. The TTAB’s error in
identifying the proper genus at step one, thereby affected
its analysis at step two.
Real Foods, 128 USPQ2d at 1380. The court advised that “[h]ad the TTAB identified
a broader genus of goods, such a determination might bear on, inter alia, the ubiquity
with which the term thins is used for that genus and whether the mark ‘refers to a
key aspect of the genus.’” Id. at n. 9 (citing Royal Crown Co. v. Coca-Cola Co., 892
F.3d 1358, 127 USPQ2d 1041, 1047 (Fed. Cir. 2018)). The court vacated-in-part and
remanded our decision for further proceedings. The court directed, among other
things, that the Board “reconsider its selected genus and conduct its genericness
analysis in light of that genus.” Id. at 1380. Our analysis and conclusion on remand
follows.6

6 The parties have not requested additional briefing on the issues raised by the court.
Opposition Nos. 91212680 and 91213587
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I. Genericness
The court stated that “[i]n opposition proceedings, the opposer bears the burden
of establishing that the applicant does not have the right to register its mark. Here,
the opposer, Frito-Lay, bears the burden of proving that the term is generic.” Id. at
1374 (citations omitted). Opposer must do so 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)).
As we stated in our prior decision, 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. Trademark Act
Section 14(3), 15 U.S.C. § 1064(3); 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). In addition, indirect evidence, including evidence “of
Opposition Nos. 91212680 and 91213587
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‘competitive use, evidence that other companies use [a term] in combination with
their own . . . marks, third-party registrations[,] and applications for such combined
marks,’ may be relevant for genericness.” Real Foods, 128 USPQ2d at 1375 (citing
Royal Crown, 127 USPQ2d at 1048).
Further, and particularly pertinent to this case, “[a]ny term that the relevant
public uses or understands to refer to the genus of goods, or a key aspect or
subcategory of the genus, is generic.” In re Twenty-Two Desserts, LLC, 2019 USPQ2d
292782 (TTAB 2019) (holding that MALAI, the Hindi word for high fat cream, is a
reference to a key aspect or a type of goods including ice cream) (citing Royal Crown,
127 USPQ2d at 1047 (“The Board … must consider whether ZERO is generic because
it refers to a key aspect of at least a sub-group or type of the claimed beverage
goods.”)). “[A] term is generic if the relevant public understands the term to refer to
part of the claimed genus of goods or services, even if the public does not understand
the term to refer to the broad genus as a whole.” In re Cordua Rests., Inc., 823 F.3d
594, 118 USPQ2d 1632, 1636 (Fed. Cir. 2016); (holding CHURRASCOS, meaning a
type of grilled meat, to be generic for restaurant services because it referred to a key
aspect of those services).
a. 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. Id.; 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
Opposition Nos. 91212680 and 91213587
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the amended identifications of goods. Therefore, the specific genera in the two
applications are, respectively, “crispbread slices predominantly of corn, namely
popped corn cakes” and “crispbread slices primarily made of rice, namely rice cakes.”
The court noted that the record describes a “crispbread slice” as a kind of cracker.
Real Foods, 128 USPQ2d at 1377. We must therefore decide in the context of the
broader genus of crispbread slices, which are a kind of cracker, whether:
● CORN THINS is a generic name for “crispbread slices
predominantly of corn, namely popped corn cakes”; and
● RICE THINS is a generic name for “crispbread slices
primarily made of rice, namely rice cakes.”7
b. 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, 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., 202 USPQ at 105). As we found in the prior decision,

7 Opposer states, “the evidence demonstrates that crispbreads are a sub-genus of crackers.
… Additionally, the evidence of record strongly indicates that THINS is used and understood
as a generic term for a variety of crispbread and other cracker products.” 47 TTABVUE 16.
Opposer considers “crispbread slices” to be a larger genus than “popped corn cakes” and “rice
cakes,” and concludes 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. 72 TTABVUE
2.
Opposition Nos. 91212680 and 91213587
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the relevant public is the general consuming public who consume and eat the snack
foods identified.8
c. Public perception
In our prior decision we first considered the individual terms in the proposed
marks and then considered the proposed marks as a whole. See Princeton Vanguard,
114 USPQ2d at 1832-33 (“even 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.”); Frito-Lay N. Am., Inc. v. Princeton
Vanguard, LLC, 124 USPQ2d 1184 (TTAB 2017) (on remand) (“it may be appropriate
‘as a first step’ to analyze the constituent terms in the applied-for mark.” (citations
omitted)). Because the court in Real Foods did not disapprove our analysis of the
proposed marks, we follow the same approach.
The pertinent evidence as introduced by the parties into the record 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 and Internet search results. “Evidence of the public’s
understanding of the term may be obtained from any competent source, such as
purchaser testimony, consumer surveys, listings in dictionaries, trade journals,
newspapers[,] and other publications.” Royal Crown, 127 USPQ2d at 1046 (internal

8 The court did not comment on our identification of the relevant public.
Opposition Nos. 91212680 and 91213587
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quotation marks and citation omitted). We presume familiarity with the evidence of
record, set forth in our prior decision.
In light of our redefined genus, however, we briefly revisit Applicant’s online
Teflon survey for genericness of the proposed CORN THINS mark. Applicant’s survey
expert, Sarah Butler, conducted a Teflon survey with a nationwide sample of adults
aged 18 or older who were past or prospective purchasers of popped corn cakes. The
survey was designed to evaluate the extent to which relevant consumers view CORN
THINS as a brand name for a product. In our prior decision, we found that Applicant’s
Teflon survey was unnecessary for the disposition of Opposer’s genericness claim and
did not further consider it.
The Board’s decision after remand in Princeton Vanguard, supra, issued after our
prior decision in this case, addressed Teflon surveys in the context of a Board inter
partes proceeding. The Board stated that “various courts have found that Teflon
surveys are only appropriate to consider in a case where the question is whether a
coined or arbitrary mark has become generic, and is not appropriate to prove
recognition of an otherwise not inherently distinctive mark” and that “we agree with
those circuit court decisions that Teflon surveys are not relevant when a term is not
inherently distinctive.” Princeton Vanguard, 124 USPQ2d at 1196. Because
Applicant’s marks are not inherently distinctive,9 the Teflon survey is not relevant,
and we need not further consider Ms. Butler’s survey.

9 See Real Foods, 128 USPQ2d at 1374 (“Substantial evidence supports the TTAB’s finding
that the proposed marks are highly descriptive.”).
Opposition Nos. 91212680 and 91213587
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i. The Terms “Rice” and “Corn”
We stated in our prior decision that “corn” is defined as a “grain,” and “rice” is
defined as “small white or brown grains that come from a Southeast Asian plant and
that are used for food”; that the terms appear in the respective identifications of goods
and identify the key or primary ingredients of the goods; and that the terms RICE
and CORN are generic names of the respective key ingredients of the respective
goods. 76 TTABVUE 28. The court in Real Foods did not disagree with these findings,
and we see no reason to revisit them.
ii. The Term “Thins”
Turning to the public’s understanding of the term “thins,” Real Foods states “that
had the Board identified a broader genus of goods, such a determination might bear
on, inter alia, the ubiquity with which the term thins is used for that genus and
whether the mark ‘refers to a key aspect of the genus.’”10 Real Foods, 128 USPQ2d
1380 n.9. In light of this instruction, we now consider “the ubiquity with which the
term thins is used for” “crispbread slices predominantly of corn, namely popped corn
cakes” and “crispbread slices primarily made of rice, namely rice cakes,” considering
“crispbread” as a kind of cracker, and whether thins refers to a key aspect or
subcategory of crispbread slices which are defined as a kind of cracker. We first

10 Our consideration of the evidence in our prior decision was not limited to the use of “thins”
in connection with popped corn cakes and rice cakes, but included consideration of the use of
“thins” on other goods such as cookies and crackers, as advocated by Opposer in its initial
brief. See, e.g., 47 TTABVUE 8. For example, we stated in the genericness section of the prior
opinion, “[w]ith 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.” 76 TTABVUE 29.
Opposition Nos. 91212680 and 91213587
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consider the uses by competitors and third parties because Real Food specifically
mentions those uses.
1. Competitor and third-party uses

Real Foods notes that “thins” has been used in marks for other similar snack food
products, and that competitive use and use of a term by other companies in
combination with their own marks may be relevant for genericness.11 Real Foods, 128
USPQ2d at 1375. Indeed, “the cases have recognized that competitor use is evidence
of genericness,” BellSouth Corp. v. DataNational Corp., 60 F.3d 1565, 35 USPQ2d
1554, 1558 (Fed. Cir. 1995), and that “evidence of competitors’ use of particular words
as the name of their goods or services, is … persuasive evidence that those words
would be perceived by purchasers as a generic designation for the goods or services.”
Phillip Morris Inc. v. Williamson Tobacco Corp., 230 USPQ 172, 176 (TTAB 1986).
See also Royal Crown, 127 USPQ2d at 1048 (“evidence of competitive use” cited as
supportive of genericness finding); In re Nordic Naturals, Inc., 755 F.3d 1340, 1344,
111 USPQ2d 1495, 1498 (Fed. Cir. 2014) (evidence of third-party competing products
described as “Children’s DHA” supported finding that the term was generic).
However, evidence of third party use in the manner of a trademark is not
necessarily probative of consumer recognition as possessing meaning which is

11 Opposer’s expert, Dr. Robert M. Frank, included a chart summarizing 119 uses of “thins”
with his expert report. 47 TTABVUE 348-350. Dr. Frank characterizes such uses obtained
from magazines, newspapers, registered trademarks and the Internet as including (i)
competitors marketing THINS products made with rice or corn; (ii) competitors marketing
THINS products made with ingredients other than rice or corn; (iii) individuals who bake
“thins” products (such as Lemon Thins or Chocolate Thins); and (iv) generic use of “thins”
where the writer is simply describing a thin, crisp bakery product. 49 TTABVUE 347. The
court referred to these uses in its decision.
Opposition Nos. 91212680 and 91213587
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generic. Nobelle.com LLC v. Qwest Comm. Int. Inc., 66 USPQ2d 1300, 1306 (TTAB
2003) (“We see no legal or logical basis for finding that trademark or service mark
use of a designation by competitors is probative evidence, under the second part of
the Ginn test, that the relevant public regards the designation as being generic.”).
Thus, we consider competitor and third-party uses of the term “thins” in their
trademarks not as evidence of non-generic use of “thins” but as favoring neither party.
But where such use is corroborated by non-trademark generic use by the same
competitor or third party, we regard it as evidence of genericness. Of course, the
competitive and third-party uses must be for goods which fall within the identified
genus, namely, crispbread slices which are a kind of cracker and which, of course,
excludes uses for breads, cookies and similar goods.
The competitor and third-party uses of “thins” for crispbread slices and crackers
favoring Opposer are:
● www.backtonaturefoods.com12 listing “Multi-Seed
Gluten Free Rice Thins” as a category of crackers along
with “Sunflower Basil” and “Classic Round”;
● Pepperidge Farm, listing “Chips, Crisps & Thins” as
product options;13
● Nature Valley Granola Thins as a product category along
with “Protein,” “Sweet & Salty Nut” and “Greek Yogurt
Protein”;14 and
● www.gratifyfoods.com listing “Sea Salt Thins” as a
product category along with “Sea Salt Sticks and Sea Salt

12 47 TTABVUE 42.
13 Id. at 244, 245.
14 Id. at 279.
Opposition Nos. 91212680 and 91213587
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Twists” and placing “SEA SALT THINS” in same location
and lettering as “GLUTEN FREE PRETZELS.”15
2. Other uses

With regard to other uses of “thins” in connection with crispbread slices and
crackers, in addition to the evidence in the record noted in our prior decision, we note
the following:
● yummly.com webpages submitted with Mr. Frank’s
report having a section devoted to “Baked Thins Recipes”
as a heading. The identified recipes are for Spiced Thins,
Almond Thins, Homemade Wheat Thins, Cheese Thins and
Pistachio Thins.16
● uses of “thins” as a noun in many articles in connection
with thin food products, and by many third-party
producers of food items:
“Guiding a neighborhood’s appetite” - The New York
Times (May 18, 2011):
Then she ate one of the baked potato thins
she invented years ago, which are not a store
favorite. “I don’t like frying,” she said. “I never
did.”17
“Seder Invaders – Grandma Wouldn’t Recognize
These 21st Century Passover Plates” - New York Post
(Mar. 31, 2004):
The golden, super-crisp thins garnered an
enthusiastic thumbs up from our office
tasters, one of whom even gave the ultimate
rave, ‘This doesn’t taste anything like
matzo!’”18

15 Id. at 364.
16 49 TTABVUE 348 – 52.
17 Id. at 393.
18 Id. at 424.
Opposition Nos. 91212680 and 91213587
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“If You Need Some Crunch; Crispy Homemade
Crackers Add a Little Snap to Dishes” - The Record
(Bergen County, NJ):
Herbed sourdough thins
1 (15-inch) sourdough baguette (about ½
pound)
3 tablespoons each butter and olive oil[.]19

● uses of “thins” in trade magazines:
“Nonni’s Foods LLC has purchased Glendale, AR-
based Villa Veneto Corporation, baker of La
DolceVita brand of products” – The Food Institute
Report (Jan. 14, 2013).
Nonni’s, the maker of biscotti and almond
thins, is a portfolio company of Chicago-
based WIND POINT PARTNERS.20
“Nature Valley granola thins” – Candy Institute
(Feb. 2012).
The thins are 100% natural, made with
delicate, crispy toasted granola and dark
chocolate.21
3. Conclusion regarding the term “thins”
We find that this third-party use evidence shows use of the term “thins” to refer
to a product category. In addition, there is the evidence discussed in our prior decision
regarding (i) Applicant’s own use of the term “thins” (including those identified in
Real Foods as being used generically), (ii) the uses of “thins” in articles, magazines
and on the Internet, and (iii) consumer uses of “thins.” All of this bears on the ubiquity
of use of the term “thins” as a subcategory of crackers or crispbread slices and suggest

19 Id. at 432.
20 Id. at 491.
21 Id. at 498.
Opposition Nos. 91212680 and 91213587
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that “thins” identifies a subcategory of crackers and crispbread slices. Thus, in
consideration of the broader genus of goods in each application, i.e., “crispbread slices
predominantly of corn, namely popped corn cakes” and “crispbread slices primarily
made of rice, namely rice cakes” (with “crispbread” defined as a kind of cracker), and
their bearing “on, inter alia, the ubiquity with which the term thins is used for” each
genus, Real Foods, 128 USPQ2d at 1380 n.9, we find that “thins” is a generic term for
a subcategory of crispbread slices.
iii. “Corn Thins” and “Rice Thins” as Combined Terms
Having found that the individual components of the proposed marks are generic,
we turn next to the proposed marks as a whole, see Princeton Vanguard, 114 USPQ2d
at 1833-33,22 and consider “whether the mark ‘refers to a key aspect of the genus.’”
Real Foods, 187 USPQ2d 1380 n.9.
Real Foods states as follows regarding the evidence concerning the combined
terms “corn thins” and “rice thins”:
Not only does the record reveal that Real Foods has
deployed the proposed marks as generic descriptors, see,
e.g., J.A. 5309 (referring, in Real Foods’ advertising
material, to the product as “Delicious Golden Corn Thins
With Real Flavoring,” with the term “Corn Thins” stylized
the same as the rest of the phrase), 5319 (same), but
purchasers of Real Foods’ products have also used these
terms to describe Real Foods’ products, rather than as
source identifiers for the products, which amounts to direct
evidence of the “commercial impression” of the mark as a
whole, DuoProSS, 695 F.3d at 1252; see, e.g., J.A. 5288
(referring, by a potential customer, to “[Real Foods’] corn

22 The redefined genus does not capture additional evidence; we did not exclude evidence in
our prior decision on the basis that it did not concern the earlier, disapproved genera of
“popped corn cakes” or “rice cakes.” If evidence was excluded in the prior decision, it was
excluded for other reasons.
Opposition Nos. 91212680 and 91213587
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thins product”), 5318 (similar by an online distributor of
Real Foods’ product).
Real Foods, 128 USPQ2d at 1376-77 (emphasis added).
The court has also stated that an applicant’s own advertising materials may be
probative, and even “the most damaging evidence,” in indicating how the relevant
public perceives a term ― as an indicator of source or as generic. See In re Gould
Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1118-19 (Fed. Cir. 1987) (“Gould’s own
submissions provided the most damaging evidence that its alleged mark is generic
and would be perceived by the purchasing public as merely a common name for its
goods rather than a mark identifying the good’s source.”); see also In re Mecca Grade
Growers, LLC, 125 USPQ2d 1950, 1958 (TTAB 2018) (finding Applicant’s website
“admits that ‘floor-malted’ refers to a type of malt … for brewing and distilling and
that ‘floor-malting’ is a process performed by others”); In re Empire Tech. Dev. LLC,
123 USPQ2d 1544 (TTAB 2017) (Board considered applicant’s own website and
promotional video in finding COFFEE FLOUR generic).
In our prior decision, we were not persuaded that the evidence pertaining to the
combined terms reflected a genus of goods. We stated, “[m]uch of the evidence comes
from Applicant rather than from actual purchasers of Applicant’s goods”; “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”; “[o]ther instances reflect mixed upper-case and lower-case
uses”; “[t]he reference in Applicant’s advertising to ‘1 Rice Thin’ is not strongly
Opposition Nos. 91212680 and 91213587
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indicative of genericness”; and “[t]he uses by wholesalers who are actual or
prospective purchasers are more indicative of genericness, but still equivocal.”23
Nevertheless, in view of the court’s comments on the evidence and our finding
above that “thins” refers to a subcategory of crackers or crispbread slices, we
reconsider the evidence.
First, we point out that there is little evidence of competitor or third-party use of
“corn thins” and “rice thins” as combined terms.24 The absence of competitor or third-
party use, however, does not require a finding of non-genericness. If an applicant is
the first to use a term, it may still be found to be generic. See In re Mecca Growers,
125 USPQ2d at 1959 (“Applicant may be the first to use the precise phrase
‘mechanically floor-malted’ to designate ‘[m]alt for brewing and distilling’ in
International Class 31 and ‘[p]rocessing of agricultural grain.’ Applicant might even
be the creator of a new mechanized process for producing floor malt. But whether this
is true or not, this does not affect the generic nature of Applicant’s proposed mark.
The record shows that the relevant public in this market will perceive the designation
‘mechanically floor-malted’ as the generic designation for such goods and services.”);
Sheetz of Del., 108 USPQ2d at 1362 (“Even if applicant was the first and/or sole user
of a generic term or phrase, as it claims, that does not entitle applicant to register
such a term or phrase as a mark.”); see also In re Nordic Naturals, 111 USPQ2d at
1498 (“[W]hile Nordic may have been the first to use the phrase ‘children’s DHA’ in

23 76 TTABVUE 30-31.
24 Real Foods mentions competitor use of the term “thins” on other similar snack foods. Real
Foods, 128 USPQ2d at 1375.
Opposition Nos. 91212680 and 91213587
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this market, the question remains, in light of Nordic’s use and all other relevant uses,
what does ‘children’s DHA’ primarily mean to the relevant public? The evidence relied
upon by the Board, and recited herein, constitutes sufficiently clear evidence that the
relevant public uses ‘children’s DHA’ primarily to refer to the category of DHA
products for children.”).
Second, we point out that “[e]ven if each of the constituent words in a combination
mark is generic, the combination is not generic unless the entire formulation does not
add any meaning to the otherwise generic mark.” In re Mecca Growers, 125 USPQ2d
at 1956 (quoting In re 1800Mattress.com IP LLC, 586 F.3d 1359, 92 USPQ2d 1682,
1684 (Fed. Cir. 2009)); see also Cummins Engine Co. v. Cont. Motors Corp., 359 F.2d
892, 149 USPQ 559 (CCPA 1966) (“TURBODIESEL” generic for engines having
exhaust driven turbine superchargers). The terms CORN, RICE and THINS retain
their generic meaning when combined in both of the proposed marks.
Third, and most importantly, we find that consumer and wholesaler uses, and
uses by Applicant, of “corn thins” and “rice thins” which are (i) “stylized the same as
the rest of [other words in a] phrase,” (ii) discuss ingredients or flavoring of the goods,
and (iii) include the article “the” before each term, are references to a subcategory of
corn or rice crackers or crispbread slices and are not trademark uses. See, e.g.,
“Flavored Corn Thins [in same font and size],” “your delicious corn thins,” “your
sample corn thins,” “The Flavors they offer are Original[,] … Multigrain[,] Sesame[,]
Rice Thins”; “I had a multigrain corn thin with some peanut butter and banana
slices”; “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
Opposition Nos. 91212680 and 91213587
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thins,” “it’s fun to experiment with toppings on a whole corn thin,” “[i]f you are
wondering what a corn thin is, think rice cake but thinner,” “your corn thins product,”
“[w]e order corn thins from Azure foods,” “I’m interested in purchasing the corn thins
for my store,” “the sesame corn thins,” “organic rice thins,” “BBQ or Cheese flavored
corn thins,” “[o]riginal corn thins flax and soy corn thins multigrain corn thins sesame
corn thins whole grain rice thins,” “flavors of corn thins,” “we found the rice thins a
good sub for bread,” and “I will look for the rice thins.”25
iv. Final Conclusion on Genericness
In view of the foregoing, we find that the combination of CORN THINS and rice
THINS as a whole imparts no new meaning and that the relevant public will
understand CORN THINS and RICE THINS to refer to a subcategory or key aspect
of crackers, or “crispbread slices predominantly of corn, namely popped corn cakes”
and “crispbread slices primarily made of rice, namely rice cakes,” respectively. CORN
THINS and RICE THINS are, therefore, generic terms and are incapable of
identifying the source of such products; purchasers will understand and will use such
terms to refer to as a subcategory of crackers.
Decision on remand: Opposer’s claim of genericness is sustained in both
applications.

25 49 TTABVUE 1366, 1367 and 1369; 50 TTABVUE 15, 16, 19, 25, 30, 99, 102, 109, 111, 113,
115, 119, 121, 131, 172 and 174.