Snikiddy LLC

Trademark Trial and Appeal Board

Apr 24, 2008

No. 78870831 (T.T.A.B. Apr. 24, 2008)

Mailed:
April 24, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Snikiddy LLC
________

Serial No. 78870831
_______

Andrew Hartman of Cooley Godward Kronish LLP for Snikiddy
LLC.

Simon Teng, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).1
_______

Before Hohein, Grendel and Rogers, Administrative Trademark
Judges.

Opinion by Rogers, Administrative Trademark Judge:

Snikiddy LLC (applicant) has applied to register PIZZA
PIE PUFFS, in standard character form, on the Principal
Register as a trademark for goods identified as "Cheese
flavored puffed corn snacks; Cheese flavored snacks,
namely, cheese curls; Cheese flavored snacks, namely,
puffed cheese balls." Applicant filed the application for
registration based on its stated intention to use the mark

1 Examining Attorney Fred Mandir was responsible for the
application prior to the briefing of the appeal.
This Opinion is Not a
Precedent of the TTAB
Ser No. 78870831
2
in commerce, but later filed an amendment alleging that the
mark was first used on April 26, 2006 and was first used in
commerce on September 7, 2006.
The examining attorney has issued a refusal of
registration, asserting that the proposed mark merely
describes the nature of the goods. The refusal was made
final despite arguments applicant advanced in support of
registrability. Applicant then retained counsel who filed
a request for reconsideration of the final refusal and
included a disclaimer of exclusive rights in PUFFS.
Notwithstanding the disclaimer, the examining attorney
maintained the final refusal, but suggested that applicant
seek registration on the Supplemental Register.2 Applicant
expressly declined and in this appeal is only arguing for
registration of its proposed mark on the Principal
Register.
Applicant advances various arguments, beginning with
the assertion, "Consumers would need a good deal of
imagination to determine the nature of the goods used with
the PIZZA PIE PUFFS mark or that it related to cheese

2 Applicant admits that PUFFS is descriptive of the goods. The
examining attorney asserts that it is generic and therefore would
be appropriate subject matter for a disclaimer even if applicant
had amended its application to seek registration on the
Supplemental Register. Resolution of that disagreement is not
required by the issue presented on appeal.

Ser No. 78870831
3
puffs." Brief p. 2. However, the law is settled and
“[t]he question is not whether someone presented with only
the mark could guess what the goods or services are.
Rather, the question is whether someone who knows what the
goods and services are will understand the mark to convey
information about them.” In re Tower Tech Inc., 64 USPQ2d
1314, 1316-17 (TTAB 2002); see also In re Home Builders
Association of Greenville, 18 USPQ2d 1313 (TTAB 1990); and
In re American Greetings Corp., 226 USPQ 365 (TTAB 1985).
Applicant admits that the proposed mark is "suggestive
of the flavor for the goods" but maintains that the goods
neither "contain any actual pizza" nor "meet the USDA
definition of pizza" and therefore neither the mark as a
whole nor the PIZZA PIE element is descriptive. Brief, p.
2.3 Pizza pies being a good deal larger than puffed corn
snacks, cheese puffs and cheese curls, we accept
applicant's assertion that its goods do not "contain any

3 To support the contention that its PIZZA PIE PUFFS product does
not contain pizza, applicant has put into the record a reprint of
some material that lists the ingredients for the product. Pizza
is not listed. To support the contention that its product does
not meet the USDA definition for pizza, applicant has put in the
record a reprint of the USDA authorized "Commercial Item
Description" for "Pizza, Prepared, Frozen." In fact, applicant
submitted this evidence twice. With evidence, only one
submission is necessary.
Applicant also submitted untimely evidence with its reply
brief. None of that has been considered. See Trademark Rule
2.142(d).

Ser No. 78870831
4
actual pizza," and we also accept that prospective
consumers of such snack foods would not believe they
contained pizza. Nor would consumers likely believe that
such snack foods met any definition of pizza, whether that
of the USDA or any other authority. Neither of these two
assertions of fact, however, precludes PIZZA PIE from being
a descriptive term for applicant's snack foods.
Consumers likely would not believe that breakfast
cereal or cereal derived ready-to-eat food bars would
contain cinnamon toast, since toast is made from sliced
bread. Nonetheless, CINNAMON TOAST was the subject of
disclaimers in registrations of CINNAMON TOAST CRUNCH for
cereal and was registered only on a showing of acquired
distinctiveness as to the CINNAMON TOAST element for cereal
based food bars. See Kellogg Co. v. General Mills Inc., 82
USPQ2d 1766 (TTAB 2007).4 Similarly, for consumers of diet
soda, "chocolate fudge" was found not to amount to a
reference that such soda contained the ingredients of
chocolate fudge or possessed the consistency of chocolate
fudge but, rather, was found to be descriptive of the

4 "Where … an applicant seeks a registration based on acquired
distinctiveness under Section 2(f), the statute accepts a lack of
distinctiveness as an established fact.” Yamaha International
Corp. v. Hoshino Gakki Co., 840 F.2d 1571, 6 USPQ2d 1001, 1005
(Fed. Cir. 1988)
Ser No. 78870831
5
flavor of the soda. See A.J. Canfield Co. v. Honickman,
808 F.2d 291, 1 USPQ2d 1364 (3d Cir. 1986).
Applicant also argues that, for potential customers of
applicant's goods "to conclude what specific products or
flavors are offered by Applicant requires imagination."
Brief, p. 4. And it more specifically asserts that the
availability of "many kinds of pizza with a myriad of
toppings" would require consumers to exercise imagination
to determine the flavor of applicant's goods. Id.
We note, however that applicant has provided a
description of its company and products for the Organic
Trade Association's web site "The Organic Pages Online"
(www.theorganicpages.com), which lists among applicant's
products and services (emphasis added):
Pizza Pie PuffsTM: The tang of tomato topped with
parmesan cheese and a pinch of oregano hit the
spot to finish off the perfect pizza taste.
Pizza Pie PuffsTM are the first of our snacks made
with all gluten free ingredients.

The trade association's web site includes among its
disclaimers, "All of the business descriptions, products,
services and advertisements have been provided solely by
the companies and organizations listed." Corroborating the
fact that the above description is applicant's own
description of its product is the listing's reference to
"our snacks." The examining attorney entered this web page
Ser No. 78870831
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into the record with the initial refusal of registration.
Applicant did not object or contest its accuracy in any
way.
Third parties have echoed applicant's description.
The evidence of such provided by the examining attorney
includes an article posted on the Natural Food Network web
page, on September 18, 2006, by Sarah Muir, Natural Food
Network New Products Editor. This article reports on three
new organic snack foods from applicant: Pizza Pie Puffs,
Chocolate Chippers, and Banana Nibbles. In regard to the
first, Ms. Muir wrote, "Pizza Pie Puffs are a corn-puff-
style snack that is pizza flavored and sure to appeal to
kids." Another third party description appears on the
Health e-Lunch Kids web page, which offers home delivery of
"healthy snack boxes" featuring various products. The
three listed boxes, offered for $2.99 each, include Health
e-Energy, Health e-Morning and Health e-Snacking. The
sales pitch for the last of the three states "Get this box
for well-rounded flavorful snacking. First, there's pizza,
Snikiddy's Pizza Pie Puffs, that is – a huge hit among
kids." As with the evidence of its own description of its
product, applicant did not object to or contest the
accuracy of these third party descriptions, which we
therefore accept as accurate.
Ser No. 78870831
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Based on the above descriptions, consumers would
expect applicant's snack food to carry a pizza flavor or
taste. See In re Andes Candies Inc., 478 F.2d 1264, 178
USPQ 156, 157 (C.C.P.A. 1973) (creme de menthe "is the
common descriptive name of a liqueur whose flavor the
public expects when it sees the mark"), and In re American
Beverage Corp., 184 USPQ 620, 621 (TTAB 1974) (“'COCOA
COOLER' is an apt descriptive name for applicant's soft
drink and, as such, would immediately indicate to
prospective purchasers the nature and characteristics of
said beverage”).
It would appear from applicant's description of its
product that it carries the flavor or taste of a standard
cheese and tomato based pizza, as opposed, for example, to
a pizza topped with particular types of meat or vegetables.
It does not matter that there are other types of pizza
whose overall flavors may be somewhat different because of
toppings. Toppings may add to the basic pizza taste, but
even topped pizzas would retain that basic taste.
Moreover, so long as the proposed mark is descriptive of
the flavor of a particular type of pizza, in this case a
standard cheese and tomato based pizza, the term PIZZA PIE
has a descriptive characteristic for consumers and it is
Ser No. 78870831
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irrelevant that the term does not describe all types of
pizza flavors or tastes.
Another argument applicant advances in support of
registration is that the combination of PIZZA PIE and
PUFFS, even if separately descriptive, somehow creates a
non-descriptive whole. We disagree and see no incongruity,
double entendre, or other characteristic that might attach
to the whole that would cast off the descriptiveness of the
two elements.5 In In re E. J. Brach & Sons, 143 USPQ 155-56
(TTAB 1964) the combination of FRUIT and CRYSTALS did not
result in a registrable composite:
Registration has been refused on the ground that
“FRUIT CRYSTALS” is merely descriptive of the
goods because it indicates the nature or flavor
of the candy and the form or shape thereof, and
therefore it is not registrable on the Principal
Register in view of Section 2(e)(1) of the
Trademark Act.
… we agree with the examiner on the record
presented that “FRUIT CRYSTALS” is merely
descriptive of applicant's candy and, as such,
unregistrable on the Principal Register.

Applicant also contends that PIZZA PIE PUFFS is not
descriptive because competitors need not use PIZZA PIE to

5 Nor does the alliterative effect of combining three words that
begin with the consonant "P" automatically result in a non-
descriptive whole. Compare In re Colonial Stores, Inc., 394 F.2d
549, 157 USPQ 352 (CCPA 1968) (SUGAR & SPICE, although a
combination of two descriptive words, registrable because it
evoked a nursery rhyme) with American Beverage Corp., supra
(COCOA COOLER descriptive) and In re Bright-Crest, Ltd., 204 USPQ
591 (TTAB 1979) (COASTER-CARDS descriptive).

Ser No. 78870831
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describe flavored cheese puffs, cheese curls and cheese
balls and, in fact, no competitors actually use PIZZA PIE
to describe such snacks. The argument is unavailing. See
Andes Candies, supra, 178 USPQ at 157-58:
That other candy makers may not have employed
“creme de menthe” so widely as to make it a
common flavor designation for candy is not
material where appellant itself has so employed
the mark.
… In the present case, candy manufacturers have a
right to employ “creme de menthe” precisely as
appellant does, i.e. to designate a flavor
similar to the liqueur….

See also Yoo-Hoo Chocolate Beverage Corp. v. A.J. Canfield
Co., 229 USPQ 653, 653-54 (D.N.J. 1986):
Despite the unique success of [defendant's]
product, the catalyst for which was a newspaper
article, Chocolate Fudge Soda describes a taste
or a flavor and no person or company should be
permitted to acquire the exclusive rights to such
a common term with such an accepted meaning.

Id. at 229 USPQ 662-63:
While the idea to market a carbonated beverage
which is both dietetic and contained a “chocolate
fudge” flavor, may have originated with Canfield,
Canfield may not thereby appropriate exclusive
rights to a well known flavor newly applied to a
diet carbonated beverage.

If the law were otherwise, a rich manufacturer
could foreclose competitors from marketing under
a descriptive name by inundating the consumer
with massive advertising and thereby, arrogating
the common name unto itself merely through its
spending power. The rule should be no different
simply because Canfield was fortunate enough to
obtain most of this publicity free. Uniqueness,
even if joined with great amounts of advertising
Ser No. 78870831
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and sales, will not remove a common descriptive
term from the public domain and bar use of the
term to describe similar goods.

Competitors, applicant also contends (brief, p. 8),
have alternative designations they could use to designate
similar flavors for their snack goods, specifically, "They
could be described as 'Italian', 'tomato', 'chili' or by a
myriad of other terms." The existence of alternative
descriptive terms does not, however, create any doubt as to
the descriptiveness of PIZZA PIE in this case or insulate
applicant from a refusal of registration on that ground,
for a descriptive term is not rendered registrable merely
because there may be alternative descriptive terms also
available for use. Cf. Genesee Brewing Co. v. Stroh
Brewing Co., 124 F.3d 137, 43 USPQ2d 1734, 1743 n.15 (2nd
Cir. 1997) (possible alternatives may not be as effective
in communicating information to prospective purchasers).
Thus, as is often said in cases involving a refusal on the
ground of descriptiveness, when the lack of competitive
uses is relied on by the applicant:
The fact that an applicant may be the first and
only user of a merely descriptive or generic
designation does not justify registration if the
only significance conveyed by the term is merely
descriptive. See In re National Shooting Sports
Foundation, Inc., 219 USPQ 1018 (TTAB 1983)
(SHOOTING, HUNTING, OUTDOOR TRADE SHOW AND
CONFERENCE held apt descriptive name for
conducting and arranging trade shows in the
Ser No. 78870831
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hunting, shooting and outdoor sports products
field).
Trademark Manual of Examining Procedure, Section 1209.03(c)
(5th ed. September 2007).

Decision: The refusal of registration under
Section 2(e)(1) is affirmed.