PRETZEL CRISPS: Generic for what?

A recent ruling affirmed that PRETZEL CRISPS should have its registration cancelled on genericness grounds (read the ruling here).

It’s an interesting case.

On one hand…

The GeneriTrend system affirms a basis for suspecting PREZTEL CRISPS is generic. The term had a capitalization ratio (GeneriTrend Metric 1) of approx 1.67 in a US Twitter dataset covering the last ten years. This means that for every occurrence as “Preztel Crisps” there were 1.67 occurrences as “pretzel crisps”.

You might think that a Metric 1 score like 1.67 is normal on Twitter where many people never capitalize anything. But Twitter users are much more conscientious about capitalizing marks than you might think. For the same period, DORITOS had a Metric 1 of only 0.10. Stepping out of bagged snacks, ROLEX, which can be considered a highly distinctive mark, had around the same at 0.09.

On GeneriTrend Metric 2, PRETZEL CRISPS scored a 0.60, which affirms that the capitalized and uncapitalized variants are used quite interchangeably – something that discounts the possibility that there is a systematic differentiation of the two forms (in different types of discourse, for example).

So PRETZEL CRISPS passes through both initial GeneriTrend metric gates towards being generic.

But on the other…

A term that is generic must be generic for something. So if “dog” is a generic term then people must be saying things such as “A Shiba Inu is a type of dog” (which indeed they are). In computational analysis of language these are called Hearst patterns after the pioneering NLP researcher Marti Hearst. These patterns boil down to the pattern: X is a Y. When talking about trademarks, a classic variation is X is a brand of Y. A quick search of the internet, for example, finds “Bufferin is a brand of aspirin widely advertised in the United States.”

So when I do an internet search for the exact string “is a brand of pretzel crisps” I would expect to find some results. Someone, somewhere, in some dusty corner of the internet, should have asserted “X is a brand of pretzel crisps”. But instead I find:

Changing up “is” to “are” doesn’t help either. The same “No results found” is true of “are a brand of pretzel crisps”. And for: “is a type of pretzel crisps”, “is a sort of pretzel crisps”, “are a type of pretzel crisps”, and “are a sort of pretzel crisps”. As of 17 August 2021, google.com gives no results on any of these exact string searches here in Canberra, Australia.

So how is PRETZEL CRISPS generic when it seems no one is using it as a category name in the classic X is a Y form?

I hope to share more research on this interesting question in a later post.

If you’d like to get some intelligence about the genericness of a trade or service mark, or would like to retain Dr Shackell for expert testimony, please get in touch via our contact page.