The United States Court of Appeals for the Federal Circuit has said that determining a mark's genericness requires a two-step inquiry: First, what is the genus of goods or services at issue? Second, is the term sought to be registered or retained on the register understood by the relevant public primarily to refer to that genus of goods or services? Evidence of the public's understanding of the mark may be obtained from any competent source, such as consumer surveys, dictionaries, newspapers and other publications.
The Trademark Trial and Appeal Board cancelled a manufacturer's registration of the mark PRETZEL CRISPS for pretzel crackers on the Supplemental Register and denying its application to register PRETZEL CRISPS on the Principal Register on the ground that it was generic. The case was appealed.
Was the manufacturer entitled to registration?
The Court held that in evaluating whether the mark "Pretzel Crisps" was generic, the Trademark Trial and Appeal Board applied the incorrect legal standard where it evaluated the terms "pretzel" and "crisps" individually even though the record was replete with evidence of the public's perception of the term as a whole. Given the conclusion that the Board applied the incorrect standard for genericness and the decision to remand for application of the correct legal test, the parties' specific arguments with respect to the evidence of record was not analyzed, but the court reiterated that the Board was required to examine the record as a whole.