[00:01:01] Speaker 04:
Ms.

[00:01:01] Speaker 04:
Hamburg, are you ready to proceed?

[00:01:02] Speaker 03:
Yes, Your Honor.

[00:01:05] Speaker 03:
May it please the Court.

[00:01:06] Speaker 03:
In ruling on the issues of suggestiveness and secondary meaning, the Board committed reversible error by evaluating the perception of the wrong consumers, those who purchase products such as pretzels, cookies, candies, crackers, or tortilla chips, rather than the actual consumers of the involved products, corn cakes and rice cakes.

[00:01:30] Speaker 03:
The right consumers.

[00:01:32] Speaker 01:
What did you call the genus in your registration papers?

[00:01:36] Speaker 03:
The board defined the genus as corn cakes and rice cakes.

[00:01:40] Speaker 01:
What did you call it in your registration papers?

[00:01:43] Speaker 03:
Originally, the identification was crispbreads.

[00:01:47] Speaker 01:
Aren't those just crackers?

[00:01:50] Speaker 03:
They are not labeled as crackers.

[00:01:52] Speaker 01:
Internationally, aren't those known as crackers?

[00:01:56] Speaker 03:
They are not labeled as crackers in the United States.

[00:02:00] Speaker 03:
They are labeled as corn cakes and rice cakes.

[00:02:03] Speaker 03:
And consumers understand them as corn cakes and rice cakes.

[00:02:07] Speaker 03:
Both my client, as well as Frito-Lay, Quaker Oats, all of the competition labels, products as corn cakes and rice cakes.

[00:02:18] Speaker 02:
The crispbreads originated from the Australian extension of protection.

[00:02:23] Speaker 02:
which was based on an Australian registration.

[00:02:25] Speaker 02:
And I do believe that there's a different understanding of what crepe is.

[00:02:29] Speaker 04:
In the blue brief at 35, you offer, quote, alternative names that are merely descriptive.

[00:02:36] Speaker 04:
Yes.

[00:02:36] Speaker 04:
Including thin corn cakes and slim corn cakes.

[00:02:40] Speaker 04:
Yes.

[00:02:41] Speaker 04:
How are those materially different from corn thins?

[00:02:45] Speaker 03:
Because we have direct evidence in the record of consumer perception

[00:02:51] Speaker 03:
of corn thins and rice thins as source identifiers in the form of unsolicited, rare, direct evidence of email communications that were sent to my client through its website, cornthins.com, via the Contact Us page.

[00:03:09] Speaker 03:
And in these emails, consumers unequivocally identify corn thins and rice thins as source identifiers and identify

[00:03:19] Speaker 03:
real foods as the source of the products.

[00:03:22] Speaker 03:
And if I may, I can quote a few of these male communications.

[00:03:25] Speaker 04:
We're familiar with a record.

[00:03:26] Speaker 01:
OK.

[00:03:27] Speaker 01:
I mean, these aren't called corn cake dens or rice cake dens.

[00:03:32] Speaker 01:
They're called corn dens or rice dens.

[00:03:37] Speaker 01:
But you're saying everybody knows when they see this that what it means is corn cake dens.

[00:03:43] Speaker 03:
I am saying that the facial incongruity

[00:03:49] Speaker 03:
of corn thins causes the consumer to exercise imagination, thought, or perception because there's no such thing as thin corn or thin rice as there is a thin cookie or a thin candy or a thin bagel.

[00:04:07] Speaker 01:
Without thin wheat?

[00:04:09] Speaker 03:
I would argue that wheat thins is also suggestive.

[00:04:13] Speaker 01:
A wheat cake?

[00:04:14] Speaker 03:
I mean wheat thins is profit.

[00:04:19] Speaker 03:
It is suggestive in our case.

[00:04:23] Speaker 01:
Are you trying to suggest it's a wheat cake?

[00:04:26] Speaker 01:
I mean, rice cakes and corn cakes, at least I've never seen a corn cake.

[00:04:30] Speaker 01:
Rice cakes are rice all put together.

[00:04:35] Speaker 01:
They're not a cracker.

[00:04:36] Speaker 01:
The wheat bins are not kernels of wheat put together.

[00:04:40] Speaker 01:
It's a cracker.

[00:04:41] Speaker 03:
Right.

[00:04:41] Speaker 03:
And because kernels of corn and the grains of rice, which are puffed or popped,

[00:04:49] Speaker 03:
when they're exposed to high heat, form a product that, as the board itself recognized, is different in ingredient composition and intended use.

[00:05:03] Speaker 01:
These are called popcorn thins or puff rice thins either.

[00:05:06] Speaker 03:
They're called corn cake.

[00:05:08] Speaker 03:
The genus is corn cakes and rice cakes.

[00:05:12] Speaker 03:
The facial incongruity of corn thins and rice thins, because these

[00:05:18] Speaker 03:
corn and the rice cannot be thinly sliced, causes the consumer to exercise some thought, imagination, or perception to rise at the conclusion that the products are thin.

[00:05:28] Speaker 03:
There's also a second meaning which consumers appreciate.

[00:05:34] Speaker 04:
Is a cake made with cornmeal a corn cake?

[00:05:38] Speaker 03:
It is a cake that is made of popped corn.

[00:05:44] Speaker 04:
No, no.

[00:05:45] Speaker 04:
If somebody is out of flour and they use

[00:05:48] Speaker 04:
cornmeal to make a birthday cake.

[00:05:49] Speaker 04:
Is that a corn cake?

[00:05:52] Speaker 03:
Not in the sense, no.

[00:05:53] Speaker 03:
It would not be labeled.

[00:05:55] Speaker 03:
It's a different genus.

[00:05:57] Speaker 03:
These are very distinct products.

[00:05:59] Speaker 01:
Why is it?

[00:06:01] Speaker 01:
You say the genus is corn cakes.

[00:06:03] Speaker 03:
Yes.

[00:06:06] Speaker 01:
Well, if it's made out of corn, why isn't it a corn

[00:06:10] Speaker 03:
Because the ingredients differ in ingredient composition and intended use... But the genus doesn't talk about the pop versus not the pop.

[00:06:18] Speaker 01:
It talks about corn cakes.

[00:06:19] Speaker 01:
You keep defining the genus down even further from what was in your registration.

[00:06:27] Speaker 03:
I don't think we do.

[00:06:28] Speaker 03:
I think that the genus is how the products are labeled and... Well, they're labeled as corn.

[00:06:35] Speaker 01:
They're labeled as corn thins.

[00:06:37] Speaker 03:
They're labeled...

[00:06:39] Speaker 03:
genus on the products that appears on the packaging on the bottom right of the products, which are in pictures of which are in our briefs, are corn cakes and rice cakes.

[00:06:52] Speaker 03:
And those are understood and they are, in fact, cakes made of popcorn.

[00:06:57] Speaker 01:
But they're not, it doesn't say popcorn cakes and puffed rice cakes.

[00:07:01] Speaker 01:
It says corn cakes and rice cakes.

[00:07:05] Speaker 03:
Well, the consumers of these goods know what the products are.

[00:07:08] Speaker 03:
and they perceive corn thins and rice thins as source identifiers.

[00:07:15] Speaker 03:
They talk about them and write about them as source identifiers.

[00:07:18] Speaker 03:
I would love to include your corn thins products in a goodie bag for participants in a 10K run.

[00:07:24] Speaker 03:
I received your corn thins product in a race goodie bag about two weeks ago and I wanted to write and tell you that I really enjoyed your product.

[00:07:31] Speaker 03:
The first 300 people attending our event were thrilled to receive your corn thins product.

[00:07:36] Speaker 03:
We would love it if you would donate your great, incredible, vegan, gluten-free corn thins product.

[00:07:41] Speaker 03:
These are all spontaneous, unsolicited consumer testimonials written to my client through its site, expressing their understanding that corn thins and rice thins identify the source of these particular products.

[00:08:00] Speaker 03:
In addition, I believe the secondary meaning analysis of the board was short circuited.

[00:08:05] Speaker 04:
So the narrow group is people who get free things?

[00:08:09] Speaker 03:
No.

[00:08:10] Speaker 03:
There are other consumers in the record who complement the product without having received product samples.

[00:08:18] Speaker 03:
But I do think the product sampling efforts of my client have contributed to the secondary meaning that the marks have acquired.

[00:08:28] Speaker 03:
But there are others who, for example, one consumer refers to having gone on a camping trip, and she writes about how her daughter enjoyed the corn thins product on the trip.

[00:08:41] Speaker 03:
There are others that express, there are other citations at pages 29 to 30 of our response brief, and at pages 49 to 50, and at pages 9 to 12.

[00:08:53] Speaker 04:
No, go ahead.

[00:08:55] Speaker 04:
At 46.

[00:08:57] Speaker 03:
Yes.

[00:08:57] Speaker 04:
You say that sampling, giving out free sample, is a critical marketing vehicle enabling real foods to effectively reach its target consumer.

[00:09:07] Speaker 04:
What evidence is there in the record that sampling was critical to advertising your particular market?

[00:09:13] Speaker 03:
In the Pell's declaration, which is, and particularly at appendix 477, Michael Pell is the owner of real foods, talks about how to reach the target market,

[00:09:26] Speaker 03:
of health-conscious people who are interested in gluten-free, GMO-free products, it's critical to distribute the product samples at naturalist food markets and at health-oriented events, athletic events, and the like.

[00:09:46] Speaker 03:
477 of the appendix.

[00:09:53] Speaker 03:
In its secondary meaning analysis,

[00:09:55] Speaker 03:
The board devoted only half a page to the issue, although real foods proffer 10 categories of evidence of secondary meaning.

[00:10:05] Speaker 03:
That's at page 45.

[00:10:07] Speaker 03:
The board failed entirely to weigh or even consider two categories of evidence.

[00:10:14] Speaker 03:
As we've discussed, there's the rare unsolicited direct evidence of consumer perception, which we submit is more than sufficient to establish secondary meaning

[00:10:24] Speaker 03:
by itself, even if the marks are found to be highly descriptive.

[00:10:30] Speaker 03:
Instead of considering this compelling direct evidence, however, the board instead considered a secondary meaning which it said, quote, suffers because it included purchasers of crackers rather than purchasers of rice cakes and corn cakes.

[00:10:47] Speaker 03:
And that's at page 44 of the board's opinion.

[00:10:51] Speaker 03:
The board should have

[00:10:52] Speaker 03:
found this survey.

[00:10:53] Speaker 04:
Give me the 477 and show me the use of the word critical, please.

[00:11:01] Speaker 02:
I don't have the record with me, Your Honor.

[00:11:03] Speaker 02:
I apologize.

[00:11:04] Speaker 04:
You don't?

[00:11:08] Speaker 02:
Apparently my co-counselor.

[00:11:10] Speaker 04:
Sure, if you're opposing counsel, I'll be kind enough.

[00:11:13] Speaker 02:
Thank you.

[00:11:45] Speaker 02:
The record was so large, I apologize to the court.

[00:11:51] Speaker 04:
You should apologize that the record was so large.

[00:11:55] Speaker 02:
I appreciate it.

[00:12:02] Speaker 03:
So at paragraph 23 on appendix 477.

[00:12:05] Speaker 04:
Where's the word critical, please?

[00:12:12] Speaker 03:
Well, it relies primarily on grassroots marketing strategies, such as giving product samples to groups and individuals.

[00:12:19] Speaker 03:
Over half of its promotional budget, which is considerable, is devoted to product sampling.

[00:12:25] Speaker 03:
You're not answering my question.

[00:12:26] Speaker 03:
You are correct that it doesn't use the word critical here.

[00:12:34] Speaker 03:
considered a survey which it found it suffered because it included purchasers of crackers rather than purchasers of rice cakes and cord cakes, even though in prior decisions it has excluded such surveys because they polled the wrong consumers, for example in the Sheets of Delaware case or in the Spirits International case.

[00:12:57] Speaker 03:
In fact, this survey together with

[00:13:02] Speaker 03:
a consideration of third party use of thins by itself was the only basis for the court's ruling that the marks lacked secondary... You're in your rebuttal time, just so you know.

[00:13:17] Speaker 03:
You can keep going.

[00:13:18] Speaker 03:
The board also stated that my client had done little to no advertising, apart from not taking into account its promotional efforts in the digital space

[00:13:27] Speaker 03:
Nowhere does the board's opinion mention my client's significant promotional spending, which is in Appendix 5469.

[00:13:37] Speaker 03:
And finally, I would submit that while not conceding on suggestiveness, I would submit that the board's decision on ruling that the marks were highly descriptive

[00:13:48] Speaker 03:
is at odds with every decision cited by either party on the issue.

[00:13:54] Speaker 03:
In those decisions, both this court and the board have established three hallmarks which a designation must possess in order to be highly descriptive.

[00:14:05] Speaker 03:
Extensive third party use of the composite by competitors, disclaimers of the composites in trademark registrations and applications for competing products, or dictionary definitions of the composites.

[00:14:17] Speaker 03:
And in this case,

[00:14:18] Speaker 03:
My client is the exclusive user of corn thins and rice thins in the United States.

[00:14:22] Speaker 03:
The board itself found on page 42 of its decision.

[00:14:27] Speaker 03:
And there are no dictionary definitions of either corn thins or rice thins.

[00:14:31] Speaker 03:
And there are no disclaimers in any third party or my own client's applications of these terms.

[00:14:36] Speaker 03:
In evaluating the distinctiveness of a mark along the spectrum, this court always looks to the entire mark.

[00:14:43] Speaker 03:
And likewise, in evaluating whether a mark, the degree of descriptiveness of the mark,

[00:14:49] Speaker 03:
we submit that this court should look at the entire composite under its own and board precedent.

[00:14:55] Speaker 03:
Thank you very much.

[00:14:56] Speaker 00:
Good morning, Your Honor.

[00:15:10] Speaker 00:
I'd like to start with our cross appeal and then I'll turn.

[00:15:12] Speaker 01:
Can I ask you about that?

[00:15:13] Speaker 01:
If we affirm the board on the descriptiveness issue,

[00:15:17] Speaker 01:
do we really need to reach the genericness issue?

[00:15:19] Speaker 00:
Well, I think you do, because if it's held to be merely descriptive, then it could potentially get onto the supplemental register, and it could potentially in the future get onto the principal register.

[00:15:32] Speaker 01:
Because it someday may acquire secondary meaning?

[00:15:35] Speaker 00:
Correct, correct, which can change over time.

[00:15:37] Speaker 01:
So we would like to... Even though Thins itself is

[00:15:40] Speaker 01:
widely used throughout the snack, food, cracker, every kind of product industry.

[00:15:45] Speaker 00:
Which is why we think it's generic.

[00:15:47] Speaker 00:
And if it's generic, it can never get on the supplemental register and it can never get on the principal register, which is why we think it's important to have a definitive ruling.

[00:15:54] Speaker 01:
Why is the board wrong that even if, Vince, and I think they recognize that it's completely generic as to snack foods, crackers, all kinds of other food products, it's not generic for specifically

[00:16:10] Speaker 01:
corn cakes and rice cakes?

[00:16:13] Speaker 00:
Well, one of the problems was the definition of the genus.

[00:16:17] Speaker 00:
Now, we agree that the genus is generally defined by the identification of goods, which was amended to popcorn cakes and rice cakes.

[00:16:24] Speaker 00:
But the record establishes that those categories of goods are subcategories of crackers because they're types of crispbreads.

[00:16:33] Speaker 00:
And the record establishes that crispbreads are types of crackers.

[00:16:36] Speaker 00:
So if thins is generic for crackers, and I think the record shows pretty definitively it is, then it's also generic for all subcategories of crackers, which would include rice cakes and popcorn cakes, just like flour is generic for a broad category of plants.

[00:16:52] Speaker 00:
Well, flour is also generic for blue bonnets and daisies and roses.

[00:16:56] Speaker 00:
So the fact that Thins is generic for crackers means it's also generic for these specific types of products.

[00:17:02] Speaker 01:
As long as we assume they're crackers, as opposed to some kind of unique thing.

[00:17:06] Speaker 00:
Right.

[00:17:06] Speaker 00:
And I would point... Rice cakes or corn cakes.

[00:17:09] Speaker 00:
Correct.

[00:17:09] Speaker 00:
And they're clearly crispbreads because that was the original identification of goods.

[00:17:13] Speaker 00:
And the record, there's definitions in the records that says that crispbread slices are types of crackers, the appendix at 60 and 94.

[00:17:21] Speaker 00:
And I think the board's decision

[00:17:23] Speaker 00:
even though they argue that these are not crackers, I think the board's decision implicitly got that part right.

[00:17:30] Speaker 01:
The board's decision is confusing and how it confuses a finding of genericness when it finds it's generic as to crackers, bread, snack products, basically everything in this food industry, but then

[00:17:46] Speaker 01:
and recognizes that these are a variant of crackers, but then yet doesn't find it generic for puffed rice cakes and puffed corn cakes.

[00:17:54] Speaker 00:
It wasn't crystal clear.

[00:17:55] Speaker 00:
I agree.

[00:17:57] Speaker 00:
But I think the record is clear that they found that thins is generic for crackers.

[00:18:04] Speaker 00:
And so the issue again is are pop corn cakes and rice cakes subcategories of crackers?

[00:18:11] Speaker 01:
And I think... Did they make that finding?

[00:18:13] Speaker 00:
They didn't.

[00:18:14] Speaker 00:
It's implied, I think, because they go through extensively the record about all the third-party uses and generic uses of thins for crackers and various other products.

[00:18:25] Speaker 01:
And there's also evidence that... If they didn't specifically make that finding, then don't we have to send it back rather than... That's what we're asking for.

[00:18:32] Speaker 00:
We're asking for the court to send the genericness issue back to the board.

[00:18:39] Speaker 00:
The other reason for that is because the board did make a finding that thins

[00:18:44] Speaker 00:
that there wasn't sufficient showing by Frito-Lay that thins is a generic term.

[00:18:53] Speaker 00:
And the only evidence they cited for that proposition was that the term thins is used in other brand names like Wheat Thins, Nabisco.

[00:19:02] Speaker 01:
That's the part that I find puzzling is what evidence would you put on that it's generic except other

[00:19:08] Speaker 00:
So we submitted other uses of thins in blogs and in letters to the applicant where consumers in their reviews of the applicant's products use the term thins in a generic manner.

[00:19:26] Speaker 00:
So it's not just in brand names like wheat thins and vegetable thins, but it's also in the text of blogs and

[00:19:32] Speaker 00:
and websites where they use the term thins all lowercase to refer to crackers or the applicant's own products.

[00:19:43] Speaker 00:
I just wanted to highlight that this issue that the board relied on the fact that the term thins is used in other brand names, that should support a finding of genericness, not defeat it.

[00:19:53] Speaker 00:
And this court in its recent decision in the Coke Zero case, that's exactly what the court said.

[00:20:00] Speaker 00:
The fact that

[00:20:02] Speaker 00:
Zero is used in multiple brand names by multiple companies like Coke Zero, Pure Zero was RC Cola's product, and various other third parties use Zero in the product name for Softdreams.

[00:20:13] Speaker 00:
The board said that is evidence, competent evidence of genericness.

[00:20:17] Speaker 00:
So they vacated the board's decision that Zero is not generic and sent it back to the board.

[00:20:22] Speaker 00:
So just like Zero is used in multiple brand names, the term Thins is used in multiple brand names.

[00:20:28] Speaker 00:
And again, also used as a generic term in text.

[00:20:34] Speaker 00:
A couple of things I want to say about the genus that supports the fact that popcorn cakes and rice cakes are types of crackers.

[00:20:46] Speaker 00:
There are, and you asked about, did the board make a finding of that.

[00:20:50] Speaker 00:
The closest there is the board did say,

[00:20:53] Speaker 00:
that when they granted the applicant's motion to amend, they pointed out that Frito-Lay, we had conceded that the record, this is a quote, the record indisputably shows that popcorn cakes and rice cakes are kind of crispbread and thus kinds of crackers.

[00:21:07] Speaker 00:
It's at page seven.

[00:21:09] Speaker 00:
Additionally, the applicant touts its products as either crackers or alternatives to crackers.

[00:21:16] Speaker 00:
And the other thing is I think they implicitly admit that crackers are relevant

[00:21:22] Speaker 00:
because they're relying on registrations of marks that include the word thins and cover crackers, but the word thins isn't disclaimed.

[00:21:31] Speaker 00:
They're saying that's relevant and that's evidence that thins is not generic.

[00:21:36] Speaker 00:
Well, if those registrations covering crackers are relevant, then so is our evidence showing generic use of the term thins for crackers.

[00:21:44] Speaker 00:
So for all of those reasons,

[00:21:46] Speaker 00:
We're asking the court to remand the genericness decision back to the board so the board can properly analyze and consider the genericness of these marks as a whole, given that both terms, corn and thins, and rice and thins, are generic individually.

[00:22:05] Speaker 04:
I have to tell you, counsel, that when I looked at your cross appeal, I concluded that no harm, no foul,

[00:22:15] Speaker 04:
that you didn't have standing, but you made a persuasive argument on the potential.

[00:22:20] Speaker 04:
Thank you, Your Honor.

[00:22:22] Speaker 00:
Turning to the applicant's appeal, of course, the board's findings that these marks are highly descriptive and that they lack acquired distinctiveness, those are purely factual findings that are subject to this court's substantial evidence review.

[00:22:41] Speaker 00:
The applicant's arguments that these marks are double entendres,

[00:22:45] Speaker 00:
That, again, that issue was specifically considered and rejected by the board.

[00:22:49] Speaker 00:
That is another factual finding that's entitled to differential review.

[00:22:52] Speaker 00:
But just a couple of the things about this double entendre issue, the cases the applicant cites illustrate usually the pretty obvious distinction between a double entendre and a descriptive mark.

[00:23:03] Speaker 00:
For example, polypitcher from the Second Circuit.

[00:23:06] Speaker 00:
That was found to be a play on the historical figure of molypitcher.

[00:23:11] Speaker 00:
Sugar and spice from the CCPA.

[00:23:14] Speaker 00:
That was found to be a play on the nursery rhyme, sugar and spice and everything nice.

[00:23:18] Speaker 00:
In stark contrast, the terms corn thins and rice thins have no catchy or incongruous meaning.

[00:23:25] Speaker 00:
To the contrary, they directly describe the main ingredient of the product and the shape of the product.

[00:23:33] Speaker 00:
Now, the applicant claims that the term thins has a second meaning.

[00:23:37] Speaker 00:
That is, if you eat these products, it'll help thin you.

[00:23:41] Speaker 00:
But they haven't identified a single ad

[00:23:43] Speaker 00:
in the record where they use the term thins in that manner.

[00:23:47] Speaker 00:
And as the board found, the record is devoid of any evidence that consumers understand that the term thins in their mark has that second meaning.

[00:23:58] Speaker 00:
So the board's finding that these marks are not double entendres and to the contrary are highly descriptive marks is a factual finding that has substantial evidence supporting it.

[00:24:11] Speaker 00:
Finally, turning to the secondary meaning issue, because these terms are highly descriptive, the applicant has a very heavy burden to establish that they have acquired distinctiveness.

[00:24:26] Speaker 00:
And the board found that the applicant failed to carry that burden.

[00:24:29] Speaker 00:
Another purely factual issue that the board found in our favor.

[00:24:33] Speaker 00:
The applicant tries to overcome those findings by, again, recasting the identifications of goods.

[00:24:40] Speaker 00:
in its applications, this time by trying to limit the channels of trade.

[00:24:43] Speaker 00:
They say, oh, well, we only sell these products in a niche market to consumers that are interested in natural, organic, healthy, wholesome, and GMO-free foods sold in natural foods markets.

[00:24:54] Speaker 00:
Well, the applicants don't say any of that.

[00:24:56] Speaker 00:
The applications do not say any of that.

[00:24:57] Speaker 00:
They don't include any limitation on channels of trade or types of consumer.

[00:25:01] Speaker 00:
And none of the cases that the applicant cites on this point that relate or a court has found secondary meaning in a niche market

[00:25:09] Speaker 00:
None of those cases are in the context of where an applicant is seeking an unrestricted federal registration like the applicant is doing here.

[00:25:17] Speaker 00:
All of those cases that they cited are in the context of a trademark owner asserting common law trademark rights or trade risk rights only in a niche market.

[00:25:29] Speaker 00:
So that's a very different situation than here where they're trying to get nationwide registration rights with an unrestricted identification of goods.

[00:25:38] Speaker 00:
And finally, even if the applications were limited to some niche market, the board found that the applicant's sales and promotional activities in those markets have been limited.

[00:25:51] Speaker 00:
The applicant claims that it has a dominant or top share in these niche markets, but the evidence that it cites for that proposition does not support it.

[00:26:00] Speaker 00:
The market data that they're relying on shows that even in those narrow markets,

[00:26:06] Speaker 00:
its sales are dwarfed by other players like Quaker and Lundberg.

[00:26:11] Speaker 00:
For example, Quaker sales are, I think, almost 20 times as large as real foods.

[00:26:17] Speaker 00:
And Lundberg's was over five times as large, even in those niche markets.

[00:26:22] Speaker 00:
And there's another study in the record that studied brand awareness.

[00:26:27] Speaker 00:
And again, the brand awareness of corn thins was dwarfed by Quaker and was characterized as

[00:26:34] Speaker 00:
as low even among second tier brands.

[00:26:41] Speaker 00:
In addition, the applicant points to a handful of consumer blogs and YouTube videos that have reviewed its product.

[00:26:47] Speaker 00:
And by handful, I'm talking about less than 20.

[00:26:49] Speaker 00:
And this is a product that's been sold in the United States for 18 years.

[00:26:52] Speaker 00:
So that's not a whole lot of reviews for a product that's been sold that long.

[00:26:56] Speaker 00:
And if you look at those blogs,

[00:27:00] Speaker 00:
They use the term corn thins and thins generically, all lowercase, even within a blog review about the applicant's own product.

[00:27:09] Speaker 00:
And finally, the applicant points to a Google search on the term corn thins that mostly returned results relating to the applicant.

[00:27:19] Speaker 00:
Well, that's hardly surprising given that they're the only ones that are using or attempting to use corn thins as a brand name.

[00:27:26] Speaker 00:
You're into your rebuttal time.

[00:27:29] Speaker 00:
I just want to mention on the Google search, as the board found several of the websites that were revealed in this Google search again used the term corn thins in all lower case generically.

[00:27:42] Speaker 00:
And of course the applicant doesn't even talk about what a Google search on the term rice thins would reveal.

[00:27:47] Speaker 00:
So we're asking the court to do two things.

[00:27:51] Speaker 00:
affirm the board's factual findings on descriptiveness and lack of distinctiveness, and vacate and remand the board's decision on genericness.

[00:28:01] Speaker 00:
Thank you.

[00:28:06] Speaker 03:
On genericness, the board got it right because they looked at the direct evidence of consumer perception of corn thins in its entirety and rice thins in its entirety.

[00:28:17] Speaker 03:
Beginning at page 30,

[00:28:18] Speaker 03:
They looked at these specific emails.

[00:28:20] Speaker 03:
And by the way, there are many in the record.

[00:28:24] Speaker 03:
More than 40 individual instances are cited in the briefs alone.

[00:28:28] Speaker 03:
There are additional ones in the record.

[00:28:30] Speaker 03:
And it concluded that these emails demonstrated direct consumer understanding of a single source of the goods, that they were consistent with awareness of a single source.

[00:28:44] Speaker 03:
And these were the emails that Frito-Lay relied upon, not

[00:28:48] Speaker 03:
all of them.

[00:28:50] Speaker 03:
And if you look at the substance of the emails, consumers don't punctuate like trademark lawyers, and they don't always capitalize the C and the T, or sometimes they'll capitalize it one time and not another time.

[00:29:02] Speaker 03:
But if you look at the substance of the emails, they all indicate source awareness.

[00:29:08] Speaker 03:
And as a result, the genericness decision is the one part of the decision where the board is looking

[00:29:16] Speaker 03:
at direct evidence of consumer perception, which is reflected in the market share report.

[00:29:25] Speaker 03:
And by the way, Frito-Lay's sales are minuscule in the natural foods market.

[00:29:31] Speaker 04:
Thank you, counsel.

[00:29:31] Speaker 03:
You're welcome.

[00:29:37] Speaker 00:
I just want to make crystal clear that the error we are pointing to in the board's decision on genericness

[00:29:42] Speaker 00:
was its conclusion that the term thins individually is not generic, that we hadn't presented it.

[00:29:48] Speaker 00:
That was a mixed record or whatever.

[00:29:51] Speaker 00:
That conclusion was erroneous because the only thing the board relied on

[00:29:59] Speaker 00:
was the fact that thins is used in brand names of other companies.

[00:30:02] Speaker 00:
Wheat thins, vegetable thins, that's marked thins.

[00:30:06] Speaker 00:
And that part of the board's analysis was erroneous.

[00:30:09] Speaker 00:
So it needs to be vacated so they can properly consider the analysis of the marks as a whole and using that as a first step in the analysis.

[00:30:18] Speaker 04:
Thank you.

[00:30:19] Speaker 04:
Thank you, Council.

[00:30:21] Speaker 04:
The matter will stand submitted.